The Oriental Insurance Co. Ltd. v. Shareefa P and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ``` MACA NO. 3179 OF 2022 ``` ``` AGAINST THE AWARD DATED 08.03.2022 IN O.P(M.V) NO.585/2018 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE ORIENTAL INSURANCE CO. LTD., METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, PIN- 682018, REPRESENTED BY ITS AUTHORIZED OFFICER- MANAGER. ``` ``` BY ADV. SRI.VPK.PANICKER ``` ## **`RESPONDENTS/PETIITONERS 1 TO 4:`** ``` 1SHAREEFA P, AGED 47 YEARS, W/O.MUHAMMAD NAVAR MEERAN M, MAKUTTY HOUSE, KARAPOTTA, KANNAMBRA, ALATHUR TALUK, PALAKKAD, KERALA - 678686 2MUHAMMED HADIL M, AGED 29 YEARS, S/O.MUHAMMAD NAVAR MEERAN M, MAKUTTY HOUSE, KARAPOTTA, KANNAMBRA, ALATHUR TALUK, PALAKKAD, KERALA - 678 686. 3SHABNA M, AGED 25 YEARS, D/O.MUHAMMAD NAVAR MEERAN M, MAKUTTY HOUSE, KARAPOTTA, KANNAMBRA, ALATHUR TALUK, PALAKKAD, KERALA - 678 686. 4SHAHANA M, AGED 21 YEARS, D/O.MUHAMMAD NAVAR MEERAN M, MAKUTTY HOUSE, KARAPOTTA, KANNAMBRA, ALATHUR TALUK, PALAKKAD, KERALA - 678686 BY ADV SRI.BABY MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` HEARING ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.3179 of 2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 10[th] day of November, 2023** The appeal on hand is originated from an award passed by II Additional Motor Accidents Claims Tribunal, Palakkad (for short ‘the Tribunal’) on 08.03.2022 in O.P.(M.V) No.585/2018. The appellant is the insurer who was the 3[rd] respondent before the Tribunal. Challenge is raised by him against the quantum of compensation stood awarded by the Tribunal in the Original Petition. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the 3[rd] respondent and petitioners in accordance with their status in the Original Petition. 3. Sri.V.P.K.Panicker, the learned counsel for the 3[rd] respondent raised a challenge against the motor accident itself for the reason that the First Information Statement was lodged to set the law in motion belatedly after 17 days. The learned counsel has also contended ``` M.A.C.A.No.3179 of 2022 ``` ``` 3 ``` that excess sums have been awarded by the Tribunal as compensation without the claim raised being supported by cogent materials in evidence. According to him, the legal representatives of the victim who died due to the injuries sustained in the motor accident, has raised a claim in the Original Petition that he was a mazon by occupation and earning ₹18,000/- as his monthly income. But, without any evidence being adduced by him, the Tribunal fixed ₹13,000/- as his monthly income, on a notional basis and therefore the Tribunal is highly unjustified. 4. The learned counsel pointed out further that the Tribunal has awarded ₹60,000/- as compensation towards pain and suffering despite the position of law on the point being settled in **United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760) that the legal representatives of a victim who lost his life in a motor accident are not entitled to get compensation for his pain and sufferings. ``` M.A.C.A.No.3179 of 2022 ``` ``` 4 ``` 5. The learned counsel for the petitioners contended on the contrary that the motor accident in which, the victim died was well established before the Tribunal through Exts.A1, A2 and A8 marked in evidence. According to him, it is also established from Ext.A3, the certificate of postmortem examination that the victim of the motor accident succumbed to the injuries sustained by him. According to him, in the above backdrop, the learned counsel for the 3[rd] respondent is not justified in canvassing that the motor accident alleged is one created by the petitioners for getting unlawful enrichment from the respondents. 6. It is found from the impugned award that ₹13,000/- was taken by the Tribunal as the monthly income, the victim of the motor accident was getting at the relevant time of his death, even in the absence of any materials to establish those. ``` M.A.C.A.No.3179 of 2022 ``` ``` 5 ``` 7. The motor accident being occurred in the year 2017, ₹13,000/- fixed as monthly income on a notional basis is too much. This Court finds it reasonable to reduce ₹2,000/- from ₹13,000/-. Since the death was occurred untimely, the Tribunal is justified in adding 10% to the monthly income in consideration of loss of future prospects. The Apex Court has held in **Satinder Kaur** supra that petitioners while seeking compensation in their capacity as legal representatives in a case of death, are not entitled to get compensation for pain and sufferings of the victim of the motor accident. Therefore, ₹60,000/stood awarded by the Tribunal as compensation under that head is deducted from the total additional compensation that would be arrived at. 8. The multiplier of 11 adopted by the Tribunal being correct is maintained. 1/4[th] is also correctly deducted by the Tribunal having due regard to the ``` M.A.C.A.No.3179 of 2022 ``` ``` 6 ``` personal expenditure liable to be incurred by the deceased, had he been alive. 9. When compensation for loss of dependency is calculated on the basis of the modified monthly income and other factors maintained, ₹11,97,900/- (₹12,100/- x 12 x 11 x ¾) is arrived at. The Tribunal has awarded ₹14,15,700/-. The compensation stood awarded by the Tribunal, being ₹2,17,800/- in excess than the sum now arrived at, it is liable to be deducted. Petitioners being not entitled also to get ₹60,000/- stood awarded by the Tribunal as compensation towards pain and suffering is also liable to be deducted. 10. As per the guidelines of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)]** petitioners are entitled to get ₹16,500/- each as compensation towards loss of estate and funeral expenses and ₹44,000/per head as compensation towards loss of consortium. ``` M.A.C.A.No.3179 of 2022 ``` ``` 7 ``` The deceased was survived by four members and each of them are entitled to get ₹44,000/- as compensation towards loss of consortium. Thus, ₹1,76,000/- (₹44,000/x 4) is arrived at as the compensation payable. ₹1,60,000/- stood awarded by the Tribunal when adjusted against, petitioners will get ₹16,000/- (₹1,76,000/- - ₹1,60,000/-) as additional compensation. Similarly, petitioners will also get ₹3,000/- (₹1,500/- + ₹1,500/-) as additional compensation towards loss of estate and funeral expenses. 11. In the above manner of calculation afresh, petitioners will get, a total sum of ₹14,39,200/[(₹16,98,000/- - ₹2,77,800/-) + (₹16,000/- + ₹1,500/- + ₹1,500/-)] (Rupees fourteen lakhs thirty nine thousand and two hundred only) as compensation. ₹14,20,200/(₹16,98,000/- - ₹2,77,800/-) out of it will carry interest at the rate of 7% as directed by the Tribunal. ₹19,000/awarded as additional compensation and it will carry ``` M.A.C.A.No.3179 of 2022 ``` ``` 8 ``` interest at the rate of 7.5% per annum, from the date of filing of the Original Petition till the date of realisation. Appellant/3[rd] respondent shall pay the above sum in favour of the petitioners alongwith interest fixed at the rates as above, within a period of two months from the date on which a certified copy of this judgment is received. 12. It is submitted by the learned counsel that ₹10,00,000/- was already deposited by the appellant. If that be the case, the sum deposited shall be adjusted by the Tribunal in the sum now payable. The amount shall be disbursed in favour of the petitioners in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB