The Oriental Insurance Co. Ltd. v. Omana and Master Ajesh (now Major)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ## **`MACA NO. 2737 OF 2015`** ``` AGAINST THE AWARD DATED 07.03.2015 IN O.P(M.V) NO.1133 OF 2005 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`APPELLANT/2ND RESPONDENT IN THE OP:`** ``` THE ORIENTAL INSURANCE CO. LTD. THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. ``` ``` BY ADV. SRI.A.R.GEORGE ``` ## **`RESPONDENT/CLAIMANTS IN THE OP:`** ``` 1OMANA, W/O.SUNDARESAN, ASHALAYAM, VENGODE, KUDAVOOR PO, THIRUVNANATHAPURAM DISTRICT-695313 2MASTER AJESH (NOW MAJOR), S/O.SUDARESANAN, -DO-, -DO- ``` ``` BY ADVS. SRI.PRATHAP PILLAI SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.C.J.VARGHESE SRI.VIVEK V. KANNANKERI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2737 of 2015 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 05[th] day of March, 2024** The appeal on hand is filed challenging an award passed by II Additional Motor Accidents Claims Tribunal, Thiruvananthapuram (for short ‘the Tribunal’) on 07.03.2015 in O.P(M.V) No.1133/2005. The appellant is the insurer, who was the 2[nd] respondent before the Tribunal. Challenge was raised against the mode of calculation adopted and the quantum of compensation arrived at and awarded by the Tribunal in the above Original Petition. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the insurer arrayed as the 2[nd] respondent and petitioners in accordance with their status in the Original Petition. 3. Before adverting to the challenges raised by the learned counsel for the 2[nd] respondent in the appeal on ``` M.A.C.A.No.2737 of 2015 ``` ``` 3 ``` hand, it would be relevant to have a brief discussion about the facts of the case: The motor accident in question was occurred on 27.04.2005. Kum.Asha Rani was travelling as pillion rider in the motorcycle bearing Registration No.KL-01/L 9655 ridden by her father from Kattaikonam to Sreekaryam. Due to rash and negligent riding of the motorcycle by her father, it fell into a gutter and she was thrown on the road. She sustained fatal injuries and succumbed to those. Alleging that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle by it’s rider who was arrayed as the additional 3[rd] respondent and raising a claim for `10,00,000/- as compensation for the loss caused due to the death of the victim of the motor accident, the Original Petition was preferred by the mother and the only sibling of the deceased. 4. The registered owner and insurer of the motorcycle were arrayed as respondents 1 and 2 in the ``` M.A.C.A.No.2737 of 2015 ``` ``` 4 ``` Original Petition. Notice was issued to all respondents from the Tribunal. 1[st] and additional 3[rd] respondents did not turn up to contest the Original Petition and therefore were declared _ex parte_ . Written statement was filed by the 2[nd] respondent denying negligence alleged against the additional 3[rd] respondent and sought for attribution of it to the deceased herself. Claims of petitioners regarding the age, the occupation and the monthly income were disputed. Amount claimed as compensation is also disputed for it's exorbitance. 5. Petitioners marked Exts.A1 to A23 in evidence. Additional 3[rd] 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 riding of the motorcycle by additional 3[rd] respondent. The Tribunal also found that the death of the victim girl was due to the injuries sustained in the motor accident and therefore, her legal representatives are entitled to get compensation from ``` M.A.C.A.No.2737 of 2015 ``` ``` 5 ``` respondents 1, 2 and additional respondent No.3 jointly and severally. Compensation payable to petitioners was calculated and `10,39,000/- was arrived at. 9% was fixed as the rate of interest and it was ordered to be paid from the date of the Original Petition till the date of realisation. 6. According to the learned counsel, the Tribunal took `6,000/- as the monthly income that would have been earned by the victim of the motor accident and added 50% to it to arrive at `9,000/-. According to him, the victim of the motor accident was aged only 19 years at the relevant time of her death and admittedly, a nonearning member, and therefore, the Tribunal ought not to have fixed `6,000/- as her monthly income. According to him, the victim being a below average student and when no materials are relied on by the petitioners to establish her academic excellence, or in the fields of arts and sports, the Tribunal ought not to have added 50% to the monthly income fixed notionally in consideration of loss of future prospects. According to the learned counsel, ``` M.A.C.A.No.2737 of 2015 ``` ``` 6 ``` `6,000/- itself is fixed on the basis of future prospects and therefore, the Tribunal is unjustified in adding 50% to the monthly income. According to him, petitioners are not entitled to get `25,000/- stood awarded by the Tribunal towards expenses on funeral of the deceased and `5,000/towards deprival of estate, `15,000/- towards pain and sufferings and `20,000/- towards loss of love and affection. According to him, as per the direction issued by the Constitution Bench of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** petitioners are entitled to get only `15,000/- as compensation under each of the heads loss of estate and funeral expenses. Therefore, this Court must interfere with the compensation stood awarded by the Tribunal and to re-fix those in terms of entitlement of the petitioners. 7. The petitioners on the contrary contended that interference is not warranted and the compensation stood awarded is only to be maintained. ``` M.A.C.A.No.2737 of 2015 ``` ``` 7 ``` 8. The victim of the motor accident died at the age of 19 years. Therefore, the correct multiplier applicable is ‘18’ and the Tribunal has adopted it correctly. The deceased being unmarried, ½ of the monthly income fixed would have been spent by her towards personal expenditure, had she been alive. The Tribunal had taken it correctly. Petitioners have marked Exts.A10, A12, A15 to A18, A21 and A22 wherefrom it is revealed that the deceased was an average student. The Tribunal has adopted a wrong method of calculation to arrive at the total compensation. The method adopted being incorrect is reversed and compensation is re-assessed with the relevant factors. 9. The deceased was established from Exts.A15 to A19 and A21 as passed Suguma Hindi and Hindi Doosari Examination. Therefore, there is every prospect for her to obtain a job relating to the course completed by her in Hindi language. Therefore, the Tribunal is justified in fixing `6,000/- as her monthly income notionally. As per ``` M.A.C.A.No.2737 of 2015 ``` ``` 8 ``` **Pranay Sethi** supra 40% is added to the monthly income fixed notionally instead of 50% added by the Tribunal. When 40% is added to `6,000/-, `8,400/- (`6,000/- + 40% of `6,000/-) is arrived at. The multiplier and deduction adopted by the Tribunal being correct are maintained. 10. `15,000/- each is awarded as compensation towards loss of estate and funeral expenses. The deceased being survived by her mother and the sole sibling, the mother is entitled to get `40,000/- towards loss of consortium and the sibling, not. `40,000/- is thus awarded in favour of the 1[st] petitioner, the mother of the deceased. Normally, compensation will not be awarded in favour of the sibling towards loss of love and affection. Since, the sibling is not entitled to get compensation for loss of consortium and since he has lost his sole companion in the motor accident, `20,000/- stood awarded by the Tribunal towards loss of love and affection is maintained. Compensation for loss of dependency when ``` M.A.C.A.No.2737 of 2015 ``` ``` 9 ``` calculated afresh with the modified monthly income `9,07,200/- (`8,400/- x 12 x 18 x 1/2) is arrived at and the petitioners are entitled to get that. Petitioners are not entitled to get `15,000/- stood awarded by the Tribunal as compensation towards pain and suffering and the sum awarded is discarded. 11. `1,500/- stood awarded as compensation towards transportation expenses is maintained. `1,000/is also awarded towards damages to clothing. Rate of interest fixed by the Tribunal was 9%. It being excessive is modified to 7.5%. 12. Thus, in the fresh and correct calculation, petitioners will get only `9,99,700/(`9,07,200/- + `40,000/- + `20,000/- + `15,000/- + `15,000/- + `1,500/- + `1,000/-) (Rupees nine lakhs ninety nine thousand seven hundred only). Petitioners will also get interest for the compensation at the rate of 7.5% per annum from the date of the Original Petition till the date of deposit. 2[nd] respondent, shall pay the modified ``` M.A.C.A.No.2737 of 2015 ``` ``` 10 ``` compensation with interest and cost within two months from the date of receipt of a certified copy of this judgment. The disbursal of the amount shall be in accordance with the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. 13. It is submitted by the learned counsel for the 2[nd] respondent that 50% of the award amount with interest and costs is already deposited in favour of the petitioners. The Tribunal on being convinced of shall adjust the said sum in the total compensation payable. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB