The Oriental Insurance Company Ltd. v Shimna and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** **MACA.No. 1614 of 2016** **AGAINST THE AWARD IN OPMV 1293/2015 of M.A.C.T.,KOZHIKODE** ## **APPELLANT/S:** **THE ORIENTAL INSURANCE MANJERI NOW REPRESENTED BY ITS ASSISTANT MANAGER RREGIONAL OFFICE, METRO PALACE, KOCHI 18** **BY ADV. SRI. MATHEWS JACOB (SR.)** ## **RESPONDENT/S:** |**1**|**SHIMNA**| |---|---| ||**W/O.LATE PRAJEESH, AGED 29, KARATTE HOUSE,**| ||**CHEMMALATHOOR,RKUTTIKATTOOR P.O, KOZHIKODE 673 008**| |**2**|**GOKUL MINOR, AGED 6 YEARS**| ||**S/O.LATE PRAJEESH,RKARATTE HOUSE,**| ||**CHEMMALATHOOR,RKUTTIKATTOOR P.O, KOZHIKODE 673 008**| |**3**|**KARTHIK MINOR AGED 4 YEARS**| ||**S/O. LATE PRAJEESH, RKARATTE HOUSE,**| ||**CHEMMALATHOOR,RKUTTIKATTOOR P.O, KOZHIKODE 673 008**| |**4**|**DAMODHARAN AGED 59**| ||**S/O. CHOYINKUTTY,RKARATTE HOUSE,**| ||**CHEMMALATHOOR,RKUTTIKATTOOR P.O, KOZHIKODE 673 008**| |**5**|**LAKSHMI, AGED 52**| ||**W/O. DAMODHARAN, RKARATTE HOUSE,**| ||**CHEMMALATHOOR,RKUTTIKATTOOR P.O, KOZHIKODE 673 008**| **(MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND NEXT FRIENT 1ST RESPONDENT)** **(NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL.)** **BY ADV. SMT. K.V. RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1614/2016 ::2:: **J U D G M E N T** **The Insurance Company is in appeal from the compensation awarded by the Tribunal. In addition to the challenge against the quantum of the compensation; the negligence found on the offending vehicle which is insured by the Company is also challenged.** **2. On the aspect of negligence, the learned Senior Counsel specifically refers to the narration of the accident as seen from the claim petition. It is to be noticed that no credence can be placed on such narration since the person who was riding the Motor Bike is no more. The claim has been filed by the father, mother, wife and the two children. Further, the contention raised by the claimants, is also that the deceased had been attempting to** MACA 1614/2016 ::3:: **overtake a lorry which was parked by the side of the road. There can be no contributory negligence alleged on the rider of the bike; even if the version is accepted, especially since the expression used in the recital is only a mistake committed by the one who drafted the claim petition. A moving vehicle passing one parked on the side of the road cannot be said to be overtaking; which expression necessarily indicates an acceleration in excess of that of the vehicle moving in front, also beset with the possibility of crossing ones own lane and the adverse consequence of collision with a vehicle coming from the opposite side. Hence this Court does not find any reason to interfere with the negligence found on the offending vehicle.** MACA 1614/2016 ::4:: **3. On the aspect of compensation, the learned Senior Counsel submits that there is duplication insofar as Rs.4,00,000/- being awarded for love and affection, Rs.1,00,000/for loss of consortium and again Rs.1,00,000/for the loss of care and guidance for the minor children. Going by the binding precedent in** _**National Insurance Company Ltd. v. Pranay Sethi and Others**_ **[2017 (5) KHC 350] Rs. 40000/- alone can be granted for loss of consortium and there can be no compensation awarded for care and guidance as already held by the Hon'ble Supreme Court. Hence the amount of Rs.1,00,000/- for loss of care and guidance would stand deleted and loss of consortium would stand reduced to Rs.40,000/-. The further contention of the Insurance Company is against Rs.4,00,000/-** MACA 1614/2016 ::5:: **awarded for loss of love and affection. In the present case, in addition to the wife , the deceased left behind two children and his aged parents. In such circumstance, a lumpsum compensation of Rs.1,00,000/- can be awarded under the head of love and affection. The amount granted by the Tribunal at Rs.4,00,000/would stand reduced to that extend. Again relying on** _**Pranay Sethi**_ **funeral expenses has to be limited to Rs.15,000/-. Compensation for transport to hospital is retained. Loss of estate also will stand reduced to Rs.15,000/-.** **4. Loss of dependency which the Tribunal computed taking a monthly income of Rs.15,000/- is seriously challenged by the learned Senior Counsel. It is submitted that but for an agreement nothing was produced to** MACA 1614/2016 ::6:: **prove the employment of the deceased. The deceased was asserted to be a gold smith and also said to have hired a room for conducting a motor work shop. This alone would not establish the income asserted by the deceased of Rs.50,000/-. True, the Tribunal had not accepted the version of the claimants but had reduced it to Rs.15,000/-. Even the amount of Rs.15,000/- per month adopted by the Tribunal is excessive; is the contention.** **5. Admittedly, the wife, children and aged parents were depending upon the deceased. The claim of the deceased being a gold smith or having taken a room on rent for auto-mobile workshop was not seriously challenged. However considering the totality of the circumstances, this Court is of the opinion that the monthly** MACA 1614/2016 ::7:: **income of the deceased can be safely fixed at Rs.12,500/-. In calcuThe income for the purpose of computation of loss of dependency would hence be taken as Rs.17,500/-.lating the compensation for loss of dependency it has to be observed that the Tribunal did not take the future prospects into account. The deceased being a person without a permanent employment, the claimants are entitled to 40% addition on the monthly income as has been laid down in** _**Pranay Sethi**_ **. The loss of dependency would then be 17,500x12x16x3/4=Rs.25,20,000/-.** **6. Though there is no separate appeal from the order of the Tribunal by the claimants, this Court is looking at the reasonable and just compensation which has to be awarded and in the context of the reduction** MACA 1614/2016 ::8:: **made on the monthly income as computed by the Tribunal it is only proper that this Court look into the reasonableness of the compensation and computation and make an addition on the future prospects, which in any event is a valid claim based on the precedent of the Hon'ble Supreme Court. The total compensation hence entitled to the claimants would be Rs.26,95,000/-.** **The appeal of the Insurance Company is allowed to the above extent. The balance if any to be paid to the claimants shall be paid within a period of two months from the date of judgment with interest at the rate as directed by the Tribunal from the date of application.** Sd/- **K.VINOD CHANDRAN,** **jma** **JUDGE**