The New India Assurance Co. Ltd. v. Sreekala UPS 174 (and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945** **CO NO. 86 OF 2022** **AGAINST THE AWARD DATED 8.12.2014 IN MACA 2838/2015 ON THE FILES** **OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM CROSS OBJECTORS/RESPONDENTS 1 TO 3 AND ADDL.RESPONDENTS 5,6,8,10,11 AND 12:** - **1 SREEKALA UPS 174, ANUGRAHA, VATTAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHIBHAVAN, KULACHUMMAL KANCHIYOORKONAM, KATTAKKADA)695 006.** - **2 ANUPAMA REPRESENTED BY HER MOTHER IST RESPONDENTUPS 174, ANUGRAHA, VATTAVILA, THIRUMALA P.O. THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHI BHAVAN,KULACHUMMAL KANCHIYOORKONAM, KATTAKKADA)** - **3 ADARSH UPS 174,ANUGRAHA, VATTAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHI BHAVAN KULACHUMMAL, KANCHIYOORKONAM, KATTAKKADA)** **4 SUSHEELAN NAIR RAJENDRAN NAIR SANTHIBHAVANAM,KANJIYOORKONAM, KATTAKADA,TRIVANDRUM.** - **5 ATHMACHARAN NAIR INDIRA BHAVAN,DHARMA ROAD, THOONGAPARA,TRIVANDRUM** - **6 HAREENDRA DAS KARTHIKA HOUSE ,KANCHIYOORKONAM, KATTAKADA,TRIVANDRUM** - **7 REMA DEVI, KEERTHANA HOUSE PAKALOOR, PALLICHAL PO, NEMOM, TRIVANDRUM** - **8 JALAJA DEVI, SWAPNA VIHAR VATTAVILA, THIRUMALA, TRIVANDRUM** - **9 BHUVANENDRAN NAIR** **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :2:** **PUTHEMVEEDU, PRA-29, CHALAKUZHY LANE PAROTTUKONA, PATTOM** **BY ADV R.T.PRADEEP** ## **RESPONDENTS/APPELLANT & ADDL.RESPONDENT NO.7:** **1 THE NEW INDIA ASSURANCE CO LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISEDOFFICER.** **2 MAHAENDRAN NAIR ANCHANA HOUSE,KATTACHAL ROAD, THIRUMALA P.O,TRIVANDRUM- 695 125** ## **BY ADV VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2023, ALONG WITH MACA.2838/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :3:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 6[TH] DAY OF JULY 2023 / 15TH ASHADHA, 1945 MACA NO. 2838 OF 2015** **AGAINST THE AWARD DATED 8.12.2014 IN OPMV 2492/2006 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE CO LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISEDOFFICER.** **BY ADV SRI.VPK.PANICKER** ## **RESPONDENTS/PETITIONERS & 4TH RESPONDENT:** **1 SREEKALA UPS 174, ANUGRAHA, VATTAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHIBHAVAN, KULATHUMMAL KANCHIYOORKONAM, KATTAKKADA)695 006.** **2 ANUPAMA (MINOR) REPRESENTED BY HER MOTHER IST RESPONDENT UPS 174, ANUGRAHA, VATTAVILA, THIRUMALA P.O. THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHI BHAVAN,KULATHUMMAL KANCHIYOORKONAM, KATTAKKADA) 695 006.** **3 ADARSH (MINOR) REPRESENTED BY HIS MOTHER IST RESPONDENT, UPS 174,ANUGRAHA, VATTAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM (PERMANENT ADDRESS SANTHI BHAVANKULATHUMMAL, KANCHIYOORKONAM, KATTAKKADA)695 006.** - ***4 JANAKI PILLAI( DIED)** **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :4:** **SANTHI BHAVAN, KULATHUMMAL, KALLIKADU, NEYYATTINKARA - 695 572.** **5 SUSHEELAN NAIR RAJENDRAN NAIR SANTHIBHAVANAM,KANJIYOORKONAM, KATTAKADA,TRIVANDRUM.** - **6 ATHMACHARAN NAIR NDIRA BHAVAN,DHARMA ROAD, THOONGAPARA, TRIVANDRUM** **7 MAHAENDRAN NAIR ANCHANA HOUSE,KATTACHAL ROAD, THIRUMALA P.O,TRIVANDRUM- 695 125** - **8 HAREENDRA DAS KARTHIKA HOUSE ,KANCHIYOORKONAM, KATTAKADA,TRIVANDRUM** **9 SUNILKUMAR LEKSHMI PRABHA HOUSE, ARIVIYODE,KANDALA .PO, ARUMALOOR,TRIVANDRUM.** - **10 REMA DEVI,** **KEERTHANA HOUSE, PAKALOOR,PALLICHAL PO,NEMOM, TRIVANDRUM** ## **11 BHUVANENDRAN NAIR** **PUTHEM VEEDU, PRA-29,CHALAKUZHY LANE,PAROTTUKONAM,PATTOM** **BY ADV SRI.R.T.PRADEEP** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2023, ALONG WITH CO.86/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :5:** ## **JUDGMENT** Since the cross objection and this appeal arise from an award dated 08.12.2014 passed by the Additional Motor Accidents Claims Tribunal - IV, Thiruvananthapuram in O.P.(MV)No.2492 of 2006, they are disposed of by this common judgment. The parties are referred to as per their status in the claim petition. 2. The claim petition was preferred by the widow and two minor children of deceased Preetha Kumar, who died in an accident on 05.10.2016. According to the petitioners, while the deceased was riding a motor cycle, a Mahindra Jeep bearing Registration No.KL-07 R/1746, driven by the 5[th] respondent in a rash and negligent manner, hit against the bike and he sustained serious injuries and later, succumbed to the injuries at the hospital on 10.10.2006. The 1[st] respondent is the owner of the Jeep and the 3[rd] respondent is the insurer. The 4[th] respondent is the mother **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :6:** of the deceased. The petitioners claimed an amount of Rs.35,00,000/- as total compensation for the death of Preetha Kumar. 3. Respondents 1, 2, 4 and 5 remained _ex parte_ . The 3[rd] respondent/insurer alone contested the claim petition and filed a written statement admitting the existence of a valid policy in respect of the Mahindra Jeep; however, contended that the accident occurred solely due to the negligence on the part of the deceased. It is also averred that the compensation claimed is exorbitant. 4. Exts.A1 to A8 were marked on the side of the petitioners. No oral evidence was adduced, either by the petitioners or by the respondents. 5. Finding negligence on the side of the 5[th] respondent, the Tribunal awarded an amount of Rs.35,10,935/- as total compensation with 9% interest per annum from the date of petition till realisation and proportionate costs and directed the 3[rd] respondent to **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :7:** satisfy the award. The compensation awarded was directed to be apportioned among petitioners 1 to 3 and the 4[th] respondent in the ratio 50:20:20:10. It is submitted that the mother of the deceased (4[th] respondent) died during the pendency of the original petition. 6. The insurer has come up in appeal contending that the compensation awarded under various heads is excessive and exorbitant. The cross objection is filed dissatisfied with the quantum of compensation awarded. 7. Heard the learned counsel for the insurance company and the learned counsel appearing for the cross objectors. 8. The deceased was an Operator-cum-Mechanic in Airports Authority of India. In the appeal, it is contended by the insurance company that the Tribunal went wrong in taking the monthly income of the deceased as Rs.16,414/on the basis of Ext.A5 salary certificate. It is pointed out that various allowances which were personal to the **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :8:** deceased cannot be considered for fixing the monthly income for the purpose of calculation of compensation. It is contended that certain allowances like overtime allowances cannot be taken into consideration for arriving at the monthly income of the deceased. It is also contended that certain inadmissible allowances have been taken into consideration and at the same time, certain admissible amounts have been deducted, which ought to have been considered as components, which form part of the salary. The learned counsel for the insurance company relies on a Division Bench Decision of this Court in v. **Jyni and Others Raphel P.T. and Others** [2016 (2) KHC 870] to contend that in the absence of documents to show that the deceased was earning overtime allowances on regular basis, the overtime allowances shall not be reckoned for computation of compensation.Taking note of the earnings, as well as the deductions, which form part of Ext.A5 salary certificate, I feel it just and proper to take the income of the deceased **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :9:** as Rs.16,414/- per month, as found by the Tribunal, for the purpose of computation of compensation. 9. It is contended by the learned counsel for the insurance company that the mother of the deceased (4[th] respondent) was not a dependent of the deceased and that the deduction towards personal and living expenses of the deceased ought to have taken as 1/3 instead of 1/4. It is further contended that the mother of the deceased (4[th] respondent) is not entitled for compensation for loss of consortium. 10. The Tribunal has placed reliance on the decision of v. the Hon'ble Supreme Court reported in **Rajesh Rajbir Singh [2013 (3) KLT 89 (SC)]** , wherein it was held that if the deceased is self employed or a person with fixed wages and is between 30 to 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Since the deceased was aged 39 years at the time of the accident, the Tribunal was justified in **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :10:** adding 50% of the income towards future prospects. Hence applying the said ratio, the income of the deceased would come to Rs.24,621/- (16,414+8,207). After deducting 1/4[th] of the income, the amount comes to Rs.18.465.75. The Tribunal has rightly taken the multiplier as 15 and accordingly, towards compensation for loss of dependency, the Tribunal has awarded an amount of Rs.33,23,835/918,465.75 X 12 X 15). I find that the compensation awarded under the said has been arrived at taking the correct multiplicand and the multiplier. 11. Towards compensation for funeral expenses, the petitioners have been awarded an amount of Rs.25,000/-. **National Insurance Co. Ltd.** _**v**_ **.** Going by the decision in **Pranay Sethi [2017 (16) SCC 680]** , the petitioners are entitled only for an amount of Rs.15,000/-. Accordingly, the excess amount of **Rs.10,000/-** (25,000-15,000) has to be deducted from the said head. 12. As held by the Hon'ble Supreme Court in **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :11:** **Oriental Insurance Company Ltd.** v. **Kahlon** [AIR 2021 SC 3913], the petitioners are not entitled for any amount under the head pain and suffering. Therefore, an amount of **Rs.15,000/-** , as already awarded, has to be deducted from the said head. 13. For compensation for loss of consortium, an amount of Rs.1,00,000/- has been awarded by the Tribunal. Following the ratio in **Pranay Sethi** (supra), the petitioners are entitled to Rs.40,000/- each under the said head. Accordingly, the compensation for loss of consortium is reworked as Rs.1,60,000/- (40,000x4) and the petitioners are entitled to an enhanced amount of **Rs.60,000** [1,60,000 – 1,00,000]. 14. In **United India Insurance Co.Ltd.** v. **Satinder Kaur** [AIR 2020 SC 3076], the Hon'ble Supreme Court held that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :12:** head. Since the petitioners are compensated under the head loss of consortium, no further amount is to be awarded towards loss of love and affection. Therefore, **Rs.30,000/-** already awarded under the head loss of love and affection has to be deducted from the total compensation. 15. I find that the Tribunal has awarded just and reasonable compensation under other heads. In the result, M.A.C.A No.2838 of 2015 is dismissed. C.O.No.86 of 2022 is allowed and the petitioners are entitled for an enhanced amount of **Rs.5,000/-** (Rupees five thousand only) [60,000 – (10,000+15,000+30,000)]. Pursuant to the order dated 29.10.2021, in I.A.No.3566/2015 (4/2015) in M.A.C.A.No.2839 of 2015, the 3[rd] respondent/insurance company has deposited 50% of the award amount. The 3[rd] respondent insurance company shall deposit the balance amount as modified by this Court, in terms of this judgment with 9% interest per **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :13:** annum and costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The Tribunal has apportioned the compensation in the proportion 50:20:20:10. Since the mother (4[th] respondent) has expired during the proceedings before the Tribunal, as per the provisions under Section 15(2)(c) of the Hindu Succession Act, 1956, the share of the mother (4[th] respondent) will stand reverted to the petitioners in equal proportion. It is ordered accordingly. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **CO Nos.86/2022 and M.A.C.A No. 2838/2015 :14:** ## **APPENDIX IN MACA NO.2838/2015** **PETITIONER ANNEXURES** **Annexure A1** **ORDER DATED 21/02/2022 IN E.P. NO. 480/2015 IN OP(MV) NO. 2492/2006 OF MACT THIRUVANANTHAPURAM**