The Oriental Insurance Co. Ltd. v. Manjakkal Challil Madhavi, Adachikkattu Remani, Chenakkparambil Subhashinni and M.C. Dinesan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943** **MACA NO. 875 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 847/2014 OF THE PRINCIPAL** **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** THE ORIENTAL INSURANCE CO. LTD. METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER BY ADV SRI.VPK.PANICKER ## **RESPONDENT/S:** 1 MANJAKKAL CHALLIL MADHAVI W/O.M.C GANGADHARAN, MANJAKKAL CHALLIL HOUSE, G.A COLLEGE POST,KOZHIKODE 673 013 2 ADACHIKKATTU REMANI AGED 58 YEARS, D/O. M.C GANGADHARAN, MANTHANATH PARAMBATH PERUVAAYAL,KOZHIKODE 673 008 3 CHENAKKAPRAMBIL SUBHASHINNI AGED 49 YEARS, D/O. M.C GANGADHARAN, CHENAKKAPARAMBIL HOUSE, CHEMMAD,MALAPPURAM 676 306 4 M.C DINESAN AGED 56 YEARS, S/O. M.C GANGADHARAN, MANJAKKAL CHALIL HOUSE, G.A COLLEGE POST, KOZHIKODE 673 013 BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.875 of 2016 ## **C.S.DIAS, J.** ## **====================== MACA No.875 of 2016** **====================== Dated this the 9[th] day of September, 2021.** ## **JUDGMENT** The appellant – insurer was the third respondent in OP (MV) No.847/2014 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the petitioners 1 to 3 and fourth respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one M.C Gangadharan (deceased), the husband of the first petitioner and the father of the petitioners 2 and 3 and the fourth respondent. 3 MACA No.875 of 2016 3. It was the case of the petitioners that, on 28.8.2010, while the deceased along with his wife and grandson were travelling in an auto rickshaw bearing registration No.KL-10/T 0932, which was driven by the second respondent in a rash and negligent manner from Palakkal to Chelari, the auto rickshaw capsized on the road causing injuries to all three of them. They were taken to Tirurangadi Taluk Hospital and was referred to the Medical College Hospital, Kozhikode, where the deceased underwent treatment till 18.9.2010. However, he developed breathing problems and lost his life on 12.10.2010. The deceased was aged 80 years and was running a barber shop by name 'Nitheesh Saloon' at Kunnathupalam. He was earning a monthly income of Rs.9,000/-. The auto rickshaw belonged to the first respondent and was insured with the third respondent. The petitioners and the fourth respondent were the dependents of the deceased. Hence, they claimed a 4 ## MACA No.875 of 2016 compensation of Rs.6,61,600/- from the respondents 1 to 3. 4. The respondents 1, 2 and 4 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement admitting that the auto rickshaw had a valid insurance coverage. However, it was contended that the accident did not occur due to the negligence of the second respondent. It was also stated that the amount of compensation claimed was excessive and exorbitant. Hence, the third respondent prayed that the claim petition be dismissed. 6. The petitioners examined PW1 and marked Exts A1 to 15 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after considering the pleadings and material on record, by the impugned award allowed the claim petition, in part, by permitting the petitioners to 5 MACA No.875 of 2016 realise from the third respondent an amount of Rs.10,12,910/-, with interest at the rate of 9% per annum from the date of petition till the date of realization with proportionate costs. 8. Aggrieved by the impugned award, the third respondent- insurer- is in appeal. 9. Heard; Sri.V.P.K Panicker, the learned counsel appearing for the appellant/third respondent – insurer and Sri.P.A Harish, the learned counsel appearing for the respondents 1 to 3. 10. The question that emerges for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Negligence and liability** 11. Ext A1 FIR proves that the accident occurred solely due to the negligence of the second respondent – the driver of the auto rickshaw. Undisputedly the auto rickshaw belonged to the first respondent and was 6 MACA No.875 of 2016 insured with the third respondent. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. ## **Notional Income** 12. The petitioners had claimed that the deceased was a barber by profession and running his own saloon named 'Nitheesh Saloon' at Kunnathupalam. They had claimed that the deceased was earning a monthly income of Rs.9,000/-. The Tribunal accepted the said assertion and fixed the notional income of the deceased at 9,000/per month. 13. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 14. Following the benchmark fixed in the aforecited decision and keeping in mind the fact that the accident 7 MACA No.875 of 2016 occurred in the year 2010 and the deceased was a barber by profession, I do not find any reason to differ with the finding of the Tribunal on the notional income of the deceased at Rs.9,000/- per month, which I confirm. ## **Multiplier** 15. As the deceased was aged 80 years at the time of his death, following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '5', which has been rightly fixed by the Tribunal. ## **Dependents of the deceased** 16. The first petitioner is the wife and petitioners 2 and 3 are the daughters and the fourth respondent is the son of the deceased. The very fact that the fourth respondent has not joined with the petitioners in the claim petition proves that he was not a dependent of the deceased. Similarly, even the petitioners 2 and 3 are in the fifties, and cannot be said to be completely dependent 8 MACA No.875 of 2016 on the deceased. Therefore, I am of the opinion that only the first petitioner was the dependent of the deceased. Nevertheless, since the deceased was earning even in his 80s and that the petitioners 2 and 3 are his daughters, I hold that only one-third of his income has to be deducted towards his personal living expenses. ## **Loss of dependency** 17. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.9,000/-, the multiplier at 5, deducting one-third of the income towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the petitioners at Rs.3,60,000/- instead of Rs.4,05,000/- awarded by the Tribunal. ## **Conventional heads of claim** 18. The Hon'ble Supreme Court in Clause (viii) of paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** has held that the 9 MACA No.875 of 2016 dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 19. In the instant case, the Tribunal has awarded an amount of Rs.25,000/- towards funeral expenses. In light of the ratio in **Pranay Sethi** (supra), I scale down the amount of compensation under the said head by an amount of Rs.10,000/-. 20.It is seen that the Tribunal has not awarded any compensation under the head loss of estate. Therefore, I award an amount of Rs.15,000/- under the said head. ## **Loss of consortium** 21. As already observed, only the first petitioner – the wife of the deceased - can be said to be the dependent of the deceased because the petitioners 2 and 3 and the fourth respondent are major children and living independent lives. Hence, I hold that only the first 10 MACA No.875 of 2016 petitioner is entitled for loss of consortium at Rs.40,000/-. ## **Other heads of compensation** 22. It is seen that the Tribunal has awarded an amount of Rs.18,000/- towards loss of earnings of the deceased, Rs.50,000/- towards pain and suffering to the deceased, Rs.1,50,000/- towards pain and sufferings to the petitioners 1 to 3, Rs.1,00,000/- towards loss of consortium to the first petitioner and Rs.2,00,000/towards loss of love and affection to the petitioners 2 and 3. ## **Loss of love and affection** 23. In **New India Assurance Co. Ltd v.** **Somavathy and Ors [(2020) 9 SCC 644]** , the Hon'ble Supreme Court has held that once compensation under the head loss of consortium is awarded, no amount can be awarded under the head loss of love and affection as it is amounted to duplication of compensation. Thus, I set aside the amount of Rs.2,00,000/- awarded by the 11 MACA No.875 of 2016 Tribunal under the head loss of love and affection to the petitioners 2 and 3. ## **Pain and sufferings** 24. In **United India Insurance Co. Ltd v. Satinder Kaur @ Satwinder Kaur and others-** **[(2020(3)KHC 760],** the Hon'ble Supreme Court has held that in the case of death no amount can be awarded under the head pain and sufferings to the dependents of the deceased. Hence, I set aside the amount of Rs.1,50,000/- awarded to the petitioners 1 to 3 under the head pain and sufferings. However, taking note of the fact that the deceased was treated as inpatient for a period of 43 days and only thereafter he lost his life, I confirm the amount of Rs.50,000/- awarded to the deceased towards pain and sufferings. ## **Care Taker expenses** 25. Similarly, I set aside the amount of Rs.14,000/that was awarded towards care taker expenses, as the 12 MACA No.875 of 2016 compensation that has been awarded in this case is one for death for which compensation is awarded towards loss of dependency. Accordingly, I hold that no amount can be awarded under the said head. ## **Bystander expenses** 26. It is seen that the Tribunal has awarded an amount of Rs.17,600/- under the head bystander expenses. As the deceased was hospitalised for a period of 43 days , I am of the opinion that the petitioners are entitled for Rs.400/- per day for 43 days that comes to an amount of Rs.17,200/-. ## **Loss of earnings** 27. As already observed above, the claim is one for death. Hence, the petitioners are not entitled for compensation for loss of earnings of the deceased, as they have already been awarded compensation for loss of dependency. 13 MACA No.875 of 2016 ## **Other heads of claim** 28. With respect to the other heads of claim, namely, transport to hospital, medical expenses and pain and suffering for the death of the deceased, I find that the Tribunal has awarded reasonable and just compensation. 29. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I am of the firm opinion that the respondents 1 to 4/petitioners 1 to 3 and the fourth respondent are entitled for compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|10,000/-|10,000/-| |2|Loss of earnings|18,000/-|nil| |3|Bystander expenses|17,600/-|17,200/-| |4|Medical expenses|23,310/-|23,310/-| |5|Pain and sufferings for|50,000/-|50,000/-| 14 MACA No.875 of 2016 ||the deceased||| |---|---|---|---| |6|Care taker expenses|14,000/-|nil| |7|Loss of consortium for<br>the firstpetitioner|1,00,000/-|40,000/-| |8|Loss of love and<br>affection<br>to<br>the<br>petitioners 2 and 3|2,00,000/-|nil| |9|Funeral expenses|25,000/-|15,000/-| |10|Pain and sufferings of<br>thepetitioners 1 to 3|1,50,000/-|Nil| |11|Loss of estate|Nil|15,000/-| |12|Loss of dependency|4,05,000/-|3,60,000/-| |||10,12,910/-<br>rounded off<br>to<br>10,13,000/-|5,30,510/-| In the result, the appeal is allowed by scaling down the compensation by an amount of Rs.4,82,490/and holding that the respondents are only entitled to an amount of Rs.5,30,510/- (Rupees Five Lakh Thirty Thousand Five Hundred and Ten only) as compensation with interest on the said amount at the rate of 7% per annum from the date of claim petition till the date of deposit, and a cost of Rs.3,000/-. The appellant/third respondent-insurer is ordered to deposit the 15 MACA No.875 of 2016 compensation amount if already not deposited, with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation to the respondents/petitioners 1 to 3 and the fourth respondent in the ratio of 50:20:20:10 and in accordance with law. sd/- sks/9.9.2021 **C.S.DIAS, JUDGE**