The Oriental Insurance Company Limited, Kollam v. Krishnakumari W/o Late Prabhakaran Pillai; Vishnu K. Prabhakaran (Minor) through his mother

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 05TH DAY OF JUNE 2020 / 15TH JYAISHTA, 1942** ## **MACA.No.2748 OF 2014** **AGAINST THE AWARD IN OP(MV) NO.738/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT:** **THE ORIENTAL INSURANCE COMPANY LIMITED KOLLAM, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE,KOCHI -18.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS:** **1 KRISHNAKUMARI W/O.LATE PRABHAKARAN PILLAI,KANKODIKKAL HOUSE, PUTHENSANKETHAM,KOYIVILA PO, THEVALAKKARA, KOLLAM,PIN 691 320 2 VISHNU K.PRABHAKAR (MINOR),S/O.LATE PRABHAKARAN PILLAI,KANKODIKKAL HOUSE, PUTHENSANKETHAM,KOYIVILA PO, THEVELAKKARA, KOLLAM,REPRESENTED BY HIS NEXT FRIEND AND MOTHER IST RESPONDENT, PIN 691 320** **BY ADV. SRI.T.R.SUGUNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-06-2020, THE COURT ON 05-06-2020 DELIVERED THE FOLLOWING:** **MACA. No.2748 OF 2014** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 5[th] day of June, 2020**_ The 3[rd] respondent-insurer in OP(MV) No.738/2013 on the files of the Motor Accidents Claims Tribunal, Ernakulam is in appeal against the Tribunal's Award dated 11.06.2014. 2. Respondents 1 and 2, who are wife and son of late Prabhakaran Pillai, were the petitioners in the OP(MV). The respondents filed the OP(MV) stating that on 02.02.2013 while late Prabhakaran Pillai was attempting to cross the Edappally - Palarivattom road, a car driven by the 2[nd] respondent in the OP(MV) in a rash and negligent manner knocked down Prabhakaran Pillai. Prabhakaran Pillai sustained fatal injuries and was taken to Ernakulam Medical Centre, but his life could not be saved. The 1[st] respondent admitted that she was divorced wife taking care **MACA. No.2748 OF 2014** **3** of the minor son of the late Prabhakaran Pillai. The respondents claimed a compensation of ₹13,92,500/-. 3. Respondents 1 and 2 filed a common written statement stating that the accident occurred due to the negligence of the deceased. The age, occupation and income of the deceased, claimed by the respondents herein, are incorrect. It was further stated that the respondents herein, the divorced wife and the son of the deceased, were not dependent on the deceased. The appellant-insurer in their written statement, though admitted the insurance, contended that the driver of the offending vehicle had no valid licence and badge. The vehicle had no fitness certificate or permit. Therefore, the appellant cannot be made liable. The compensation claimed by the respondents is excessive. 4. The 1[st] respondent-claimant examined herself as PW1 and produced Exts.A1 to A6 documents. 5. The Tribunal, after examination of evidence **MACA. No.2748 OF 2014** **4** adduced in the petition, awarded a compensation of ₹8,93,200/- to the respondents under the following heads:- |**Heads**|**Amount**<br>**claimed**<br>**(Rs.)**|**Amount**<br>**awarded**<br>**(Rs.)**| |---|---|---| |Loss of dependency|12,48,000|8,11,200| |Transportation expenses|3,500|2,000| |Damage to clothings and articles|1,000|0| |Funeral expenses|15,000|15,000| |Compensation for pain and sufferings|15,000|15,000| |Compensation for loss of estate|5,000|20,000| |Compensation for loss of love and affection|30,000|30,000| |Compensation for loss of consortium|30,000|0| |**Total**(Limited to`13.9 lakhs)|13,92,500|**8,93,200**| The appellant-insurer is bound to indemnify the driver and owner of the vehicle. The respondents in the OP(MV) were found jointly and severally liable to pay the compensation amount. Interest at the rate of 9% per annum from the date of OP(MV) was also awarded. It is aggrieved by the compensation awarded by the Tribunal that the appellantinsurer is before this Court. 6. Learned Standing Counsel for the appellant **MACA. No.2748 OF 2014** **5** stated that the deceased was aged 46 and was a daily earning worker. Though the respondents claimed ₹8,000/as monthly income of the deceased, in the absence of any evidence, the Tribunal fixed the income as ₹6,000/- per month. It is the contention of the learned Standing Counsel that the 1[st] respondent is admittedly a divorced wife and hence is not entitled to compensation for dependency. The relationship certificate would show that the 2[nd] respondentson alone is the legal representative of the deceased. It was further argued that the deceased being a daily earning person, the Tribunal ought to have enhanced the monthly income only by 25% towards future prospects. However, the Tribunal fixed the monthly income and took 30% as enhancement owing to future prospects. Therefore, the compensation awarded is liable to be reduced to a considerably extent, contended the counsel for the appellant-insurer. 7. The learned counsel for the respondent submitted **MACA. No.2748 OF 2014** **6** that though the 1[st] respondent was divorced wife of the deceased, she was taking care of the son of the deceased, and in acknowledgment thereof, the deceased was paying monthly maintenance to her and the son, even after divorce. Therefore, she is legally entitled to get compensation due to deprivation of dependency consequent to the death of the deceased. 8. I have heard the arguments of the learned counsel for the appellant and that of the respondents. 9. From the evidence, it comes out that the deceased was a daily earning person, who was not employed in any establishment. The deceased was aged 46 years. PW1, wife of the deceased, mounted the witness box and deposed that though she was divorced from the deceased, the deceased was paying her maintenance and she was taking care of the son. The testimony of PW1 could not be discredited by the appellant. Therefore, the 1[st] respondent should necessarily be taken as the dependent of **MACA. No.2748 OF 2014** **7** the deceased. Respondents 1 and 2, who are mother and minor son, are living together. The 1[st] respondent is taking care of the upbringing of the minor son. In such circumstances, compensation for loss of dependency awarded by the Tribunal to the 1[st] respondent and the 2[nd] respondent, cannot be interfered with.0 10. The further contention of the Standing Counsel for the appellant is that the deceased being a daily earner, enhancement in his monthly income towards future prospects can be at the rate of 25% only. It is true that as per the standardised rates of enhancement of self-employed group, only 25% enhancement can be given to a self-employed person between the age of 40 and 50 years. However, it is to be noted that going by the guidelines laid down by the Apex Court in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735],_ the notional income of a daily earning person, who died in the year 2013, should be fixed **MACA. No.2748 OF 2014** **8** somewhere around ₹9,000/-. The Tribunal has fixed the income at ₹6,000/- per month. In such circumstances, interfering with the Award of the Tribunal on the ground of erroneous fixation of future prospects, would be harsh and unjust on the family of the victim. In the circumstances, this Court is of the opinion that no interference is warranted in the Award passed by the MACT, Ernakulam in OP(MV) No.738/2013. Consequently, the appeal fails and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/02/06/2020