The National Insurance Company Limited v. Assya and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945`** ## **`MACA NO. 38 OF 2018`** ## **`AGAINST THE AWARD DATED 10.03.2017 IN O.P(MV) NO.597/2014 OF ADDITIONAL`** ## **`MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, MANJERI`** ## **`APPELLANT/2ND RESPONDENT IN O.P(MV) NO.597 OF 2014:`** ``` THE NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, PALLIKKAL SHOPPING COMPLEX,2ND FLOOR, KOZHIKODE ROAD, MANJERI (PO) ``` ``` REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM ``` ``` BY ADV. SEBASTIAN VARGHESE ``` ## **`RESPONDENTS / PETITIONERS NO.1 TO 7 IN O.P(M.V) NO.597 OF 2014:`** - **`1 ASSYA, AGED 55 YEARS,W/O. LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O) KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`2 SALMABI AGED 36 YEARS, D/O.LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`3 AMEERALI, AGED 31 YEARS S/O LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`4 FAROOK ALI, AGED 29 YEARS S/O.LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR`** - **`(P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`5 KAIRUNNISA, AGED 26 YEARS, D/O. LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`6 SARABHI AGED 24 YEARS,D/O. LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`7 MUSRIFA AGED 18 YEARS,D/O.LATE KUNHIMOHAMMED P.K, PALLIKKUNNAN HOUSE, KAVANNOOR (P.O), KAVANNOOR VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT 632 507`** - **`BY ADVS. SRI.JITHIN LUKOSE SRI.P.SAMSUDIN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON ``` ``` 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.38/2018 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 29[th] day of February, 2024.** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal-II, Manjeri (for short, ‘the Tribunal’) on 10.03.2017 in O.P (M.V) No.597 of 2014. The 2[nd] respondent in the above Original Petition, who was the insurer of the offending vehicle has approached this Court in the appeal on hand challenging the quantum of compensation stood awarded by the Tribunal contending it as excessive. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 7 and respondents 1 and 2 in accordance with their status in the Original Petition. 3. This is a case of death. On 08.01.2014 at 12 noon while Mr.Kunhimuhammed was standing on the extreme side of Manjeri-Areacode public road, a car bearing Registration ``` MACA NO.38/2018 ``` ``` 3 ``` No.KL-10-AM-3345 knocked him down at Kavannoor. He sustained serious injuries and was rushed to Al-Shifa hospital, Perintalmanna, where he succumbed to death on the same day. Alleging that the motor accident was occurred due to the rash and negligent driving of the car by its driver and claiming a total sum of `10,00,000/-, the above Original Petition was filed before the Tribunal. The driver cum owner and the insurer of the car were arrayed as respondents 1 and 2 in the above Original Petition. Notice was issued to both respondents from the Tribunal. Though served with, 1[st] respondent did not turn up to contest the Original Petition and therefore was declared as _ex parte_ . 4. 2[nd] respondent has filed written statement admitting insurance coverage for the car bearing Registration No.KL-10AM-3345 as on date of the motor accident. Negligence on the part of the 1[st] respondent was denied and it was sought to be attributed to the deceased. Amount claimed as compensation was also denied for its exorbitant nature. Claims of the ``` MACA NO.38/2018 ``` ``` 4 ``` petitioners regarding the age, the occupation and the monthly income of the deceased were also disputed. 5. Before the Tribunal, Exts.A1 to A5 were marked in evidence on the side of the petitioners. Respondent did not adduce any evidence. On the basis of the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the car bearing Registration No.KL-10-AM-3345 by its driver, who was arrayed as the 1[st] respondent. The death of the victim of the motor accident and it’s cause were established before the Tribunal by the documentary evidence on record. Accordingly, it was found that the petitioners being legal representatives of the deceased are entitled to get compensation. A sum of `7,53,322/- was arrived at as the compensation payable. Interest at the rate of 9% per annum from the date of the Original Petition till the date of deposit was also ordered for the compensation arrived at. 2[nd] respondent was directed to deposit the compensation within 30 days from the date of the ``` MACA NO.38/2018 ``` ``` 5 ``` award. Aggrieved by the quantum stood awarded by the Tribunal, the insurer is before this Court, assailing it. 6. It is contended by the learned counsel for the 2[nd] respondent/insurer that the deceased was aged 62 years at the relevant time of the motor accident and was a coolie worker. The Tribunal has added 15% to the monthly income fixed by it notionally as `6,000/- in consideration of loss of future prospects. According to the learned counsel, the Constitution Bench of the Apex Court has held in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT** **662 (SC)]** that a man aged above 60 years is not entitled to get any addition to the monthly income in consideration of loss of future prospects. It is further pointed out by the learned counsel that the Tribunal has awarded excess amount than that was payable under the conventional heads. Accordingly, he canvassed for modification of the compensation stood awarded by the Tribunal by reducing the amount. The learned counsel pointed out further that the deceased was survived by his wife ``` MACA NO.38/2018 ``` ``` 6 ``` and six children, and except one child, all others are majors. Accordingly, he urged for declining compensation towards loss of consortium in favour of the children other than the one aged only 15 years. 7. It is also pointed out by the learned counsel that the Tribunal has also awarded compensation in favour of the petitioners towards pain and suffering and loss of love and affection, which they as legal representatives of the deceased are not entitled to get. Therefore, the learned counsel canvassed for deducting those from the total compensation payable. 8. The Tribunal fixed the monthly income of the deceased as `6,000/- notionally and added 15% to it, in consideration of loss of future prospects on account of the untimely death of the victim. As rightly pointed out by the learned counsel for the 2[nd] respondent, the deceased being aged above 60 years is not entitled to have any addition to his monthly income in consideration of loss of future prospects. ``` MACA NO.38/2018 ``` ``` 7 ``` Therefore, addition of 15% to `6,000/- for calculation purpose being erroneous, is liable to be reversed. 9. As compensation towards funeral expenses and loss of estate, `25,000/- and `1,00,000/- respectively were found awarded by the Tribunal. Those sums undoubtedly being excess than that was payable as per the direction of the Apex Court in **Pranay Sethi** supra, `10,000/- and `85,000/- are deducted from the sum stood awarded by the Tribunal. 10. As rightly pointed out by the learned counsel for the 2[nd] respondent, petitioners being legal representatives of the deceased are not entitled to get compensation towards pain and suffering and loss of love and affection. 11. It is pointed out by the learned counsel that the children of the deceased except the youngest one having been attained the age of majority, are not entitled to get compensation for loss of consortium. The argument is only to be repelled in the light of **Pranay Sethi** supra. Therefore, petitioners 2 to 7 are entitled to get `40,000/- each as ``` MACA NO.38/2018 ``` ``` 8 ``` compensation towards loss of consortium. The wife undoubtedly is also entitled to get `40,000/- as compensation towards loss of consortium. Therefore, a sum of `2,80,000/(`40,000/- x 7) is arrived at as the compensation payable under the head loss of consortium. 12. When compensation for loss of dependency is calculated on the basis of the monthly income fixed by the Tribunal, deduction of ¼[th] and multiplier as 7, only a sum of `3,78,000 **/-** (`6,000/- x 7 x 12 x 3/4) is payable. `3,86,400 **/-** stood awarded by the Tribunal in it’s erroneous method of calculation when adjusted against, `8,400/- is found liable to be deducted from the total compensation payable. 13. In the above manner of calculation afresh, the petitioners are entitled to get only `7,14,922/- rounded off to `7,15,000/- (`15,000/- + `15,000/- + `2,80,000/- + `3,78,000/- + `1,000/- + `24,922/- + `1,000/-) as the total compensation payable. The rate of interest fixed by the Tribunal is maintained. The appellant, who was the 2[nd] ``` MACA NO.38/2018 ``` ``` 9 ``` respondent before the Tribunal shall deposit the above sum in favour of the petitioners within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by the Tribunal in the impugned award and the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed accordingly. ``` Sd/- ``` **MARY JOSEPH JUDGE** JJ