Thenmozhi v. The New India Assurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 ``` ## **`MACA NO. 2592 OF 2017`** ``` AGAINST THE AWARD DATED 17.03.2017 IN OP(MV) NO.841/2014 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` THE NEW INDIA ASSURANCE COMPANY LTD, REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS DULY ATHORIZED OFFICER. ``` ``` BY ADV. SRI.VPK.PANICKER ``` ## **`RESPONDENTS / PETITIONER:`** ``` THENMOZHI, W/O.THANKARAJ, SUBBAYYA GOUNDER STREET, SIRUMUGHI, METTUPALAYALAM TALUK, COIMBATORE, TAMILNADU-641 302. ``` ``` BY ADV. V.A.OMANAKUTTAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2592 OF 2017 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 09[th] day of February, 2024.** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, ‘the Tribunal’) on 17.03.2017 in O.P.(M.V) No.841 of 2014. The appellant is the 3[rd] respondent before the Tribunal, who is none other than the insurer of the offending vehicle involved in the motor accident. 2. Challenge is raised mainly against the mode of calculation adopted by the Tribunal as well as the quantum of compensation arrived at as payable in favour of the respondent. Respondent is none other than the sole legal representative of the victim, who died in the motor accident. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and ``` MACA NO. 2592 OF 2017 ``` ``` 3 ``` respondents 1 to 3 in accordance with their status in the Original Petition. 4. The facts of the case in brief are to the following effect:- At about 11.35 am, on 17.09.2013 while Mr.Rummes was pillion riding on a motorcycle bearing Registration No.TN 37 AP 7204 through seaport-Airport road from north to south, it capsized near the main gate of Info Park due to rash and negligent riding by its rider, who was arrayed as the 2[nd] respondent in the Original Petition. He sustained serious injuries and was rushed to Sunrise Hospital, where he succumbed to death on the same day at 3.45 p.m. The motor accident was allegedly occurred due to the rash and negligent riding of the motorcycle by its rider. The owner of the motorcycle and its insurer were arrayed as the 1[st] and 3[rd] respondent respectively in the Original Petition. A sum of `55,00,000/- was also claimed as compensation. The respondents were served with notice from the ``` MACA NO. 2592 OF 2017 ``` ``` 4 ``` Tribunal. 1[st] and 2[nd] respondents, though received notice, did not turn up to contest the Original Petition and therefore were declared as _exparte_ . 5. 3[rd] respondent filed written statement admitting insurance coverage of the motorcycle bearing Registration No. TN 37 AP 7204 as on date of the motor accident. It was contended that the 2[nd] respondent was not rash and negligent in riding the motorcycle and therefore, was not responsible for causing the motor accident and that the victim himself was responsible for the motor accident to occur. Original Petition was filed by the petitioner claiming to be the legal representative of the deceased but, his status so is not proved. Amount claimed as compensation is also contended as excessive and without any basis. 6. Before the Tribunal, evidence was adduced by the petitioner and it consists of Exts.A1 to A15. Based on that ``` MACA NO. 2592 OF 2017 ``` ``` 5 ``` evidence, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle by the 2[nd] respondent. The Tribunal also found that Mr.Rummes died due to the injuries sustained in the motor accident and the petitioner being his mother is entitled to get compensation for his death. A sum of `46,00,000/- was arrived at as the total compensation payable and the 3[rd] respondent was directed to pay the same with interest ordered to be paid at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation, in favour of the petitioner. 7. Sri.V.P.K Panicker, the learned counsel for the 3[rd] respondent contended that multiplier method of calculation was adopted by the Tribunal for arriving at the compensation payable to the petitioner, but, some errors have been crept into. According to him, the monthly income of the deceased was ``` MACA NO. 2592 OF 2017 ``` ``` 6 ``` fixed as `21,000/- and 50% was added to it in consideration of loss of future prospects. According to him, the Tribunal ought to have added 40% instead of 50%. The learned counsel conceded that the multiplier and the deduction towards personal expenditure were adopted by the Tribunal correctly. The learned counsel pointed out further that the Tribunal has shown the figure depicting the compensation payable erroneously as `42,84,000/- instead of `32,13,000/-. 8. The learned counsel pointed out furthermore that under the conventional heads also, the Tribunal failed to award the compensation which the petitioner was entitled to receive on the basis of the dictum of the Constitution Bench of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (4) KLT 662 (SC)]** . According to him, the petitioner is entitled to get `4o,000/- as compensation towards loss of consortium and `15,000/- each as ``` MACA NO. 2592 OF 2017 ``` ``` 7 ``` compensation towards loss of estate and funeral expenses, whereas, the Tribunal has awarded `25,000/- towards funeral expenses and `1,00,000/- towards loss of estate. The Tribunal failed to award compensation towards loss of consortium but awarded `1,00,000/- and `75,000/- respectively as compensation towards loss of love and affection and pain and suffering. According to the learned counsel, compensation stood awarded under the heads pain and sufferings and loss of love and affection are only to be deducted, since the petitioner is not entitled to receive those. 9. This Court also notices from **Pranay Sethi** supra that in the case of a person self employed or with a fixed salary and aged below 40 years, 40% is liable to be added in consideration of loss of future prospects, whereas the Tribunal has wrongly added 50% to the monthly income and calculated compensation. Monthly income fixed being reasonable is ``` MACA NO. 2592 OF 2017 ``` ``` 8 ``` maintained. 40% is added to it and thereby `29,400/(`21,000/- + 40% of `21,000/-) is arrived at. Compensation for dependency when calculated afresh with the above modified factor `29,98,800/- (`29,400/- x 12 x 17 x 1/2) is arrived at. 10. As rightly pointed out by the learned counsel, the Tribunal has shown the compensation payable towards loss of dependency incorrectly as `42,84,000/-, which is `12,85,000/in excess of the actual sum payable as compensation under that head. The excess sum is liable to be deducted from the total compensation payable. 11. `10,000/- awarded in excess as compensation towards funeral expenses is liable to be deducted. Petitioner is entitled to get `40,000/- as compensation towards loss of consortium. `1,00,000/- stood awarded as compensation towards loss of love and affection is also liable to be deducted from the total sum payable as compensation. `85,000/- stood ``` MACA NO. 2592 OF 2017 ``` ``` 9 ``` awarded in excess as compensation towards loss of estate is also liable to be deducted. Similarly, `7,500/- stood awarded as compensation towards pain and suffering is also to be deducted. 12. When modification of compensation is done in the above manner, the petitioner will get only `30,84,800/(Rupees Thirty Lakh Eighty Four Thousand Eight Hundred only) (`29,98,800/- + `4,000/- + `12,000/- + `15,000/- + `15,000+ `40,000/-) as the total compensation payable. The same will carry interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of payment. 3[rd] respondent shall deposit only the sum now arrived at as compensation with interest accrued on it at the rate fixed, within two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be in accordance with the directions issued by the Tribunal as well ``` MACA NO. 2592 OF 2017 ``` ``` 10 ``` as the guidelines issued by this Court in Circular No.03/2019 dated 06.09.2019. The respondent is also entitled to get proportionate costs. 13. The learned counsel for the 3[rd] respondent made a submission that `25,000/- has already been deposited at the time of filing of the appeal on hand and 50% of the compensation with interest and costs was deposited by the 3[rd] respondent in compliance of the direction issued by this Court while granting interim stay in the appeal. The Tribunal on being convinced of the above payments shall adjust those in the compensation to be paid. ``` Sd/- ``` **MARY JOSEPH** **JUDGE** JJ