UNNIKRISHNAN AND OTHERS v. SHINY GEORGE AND THE NEW INDIA ASSURANCE COMPANY LIMITED

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 17[ TH ] DAY OF JULY 2024 / 26TH ASHADHA, 1946`** ## **`MACA NO. 639 OF 2017`** ``` AGAINST THE AWARD DATED 03.11.2016 IN OP(MV) NO.267 OF 2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA ``` ## **`APPELLANTS/PETITIONERS:`** - **`1 UNNIKRISHNAN,`** ``` S/O.APPU NAIR, ``` - **`2 GIRIJA UNNIKRISHNAN, W/O.UNNIKRISHNAN,`** - **`3 ARPITHA KRISHNAN,`** ``` D/O.UNNIKRISHANAN, ALL ARE RESIDING AT PULIYAMKOTTU HOUSE, 189 A, CHELAMPAPPOYIL NILAM, NOCHAD P.O., KALPATHUR, (VIA) MEPPAYUR, KOZHIKODE-673524. ``` ## **`BY ADV SRI.AVM.SALAHUDEEN`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SHINY GEORGE,`** ``` W/O.SAJI JOSE, RESIDING AT GOVERNMENT QUARTERS, MELARANNOOR, KARAMANA, THIRUVANANTHAPURAM-695002. ``` ``` (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 26/3/19 IN IA NO. 1/19 IN MACA 639//17). ``` MACA 639/17 2 - **`2 THE NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE-673004.`** ``` BY ADV P.LISSY JOSE, SC, NEW INDIA ASSURANCE COMPANY LIMITED ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 639/17 3 ## **J U D G M E N T** This appeal is at the instance of the claimants in OP(MV)No.267 of 2013 on the file of Motor Accidents Claims Tribunal, Vatakara, challenging the award on the ground of inadequacy of compensation. 2. On 13.09.2012 at 1.45 a.m., one Mr.Unnikrishnan met with a road traffic accident, while he was travelling in KL-01/AU-4634 Hyundai car. That car was driven by one Mr.Sharone, in a rash and negligent manner. When the car reached Thonnakkal, the driver overtook a Maruti Omni, without proper care and caution, and so it collided with a KSRTC bus, which was parked on the right side of the road. 3. Sri.Unnikrishnan as well as the driver of the car Mr.Sharone sustained fatal injuries, to which they succumbed. Sri.Unnikrishnan was a 21 year old B Tech Student and he was also taking tuition classes, earning monthly income of Rs.8,000/-. His legal heirs approached the Tribunal claiming compensation of Rs.30,00,000/-. But learned Tribunal awarded MACA 639/17 4 only Rs.15,66,000/-. Against which, this appeal has been preferred. 4. The 1st respondent was the owner of the Hyundai car and 2nd respondent was its Insurer. Sri.Sharone, who was the driver of the car, died in that accident. The Policy is admitted. According to the 2nd respondent, the compensation awarded by the Tribunal is just and reasonable and hence, it needs no modification. 5. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. 6. Heard learned counsel for the appellants and learned counsel for the 2nd respondent-Insurer. 7. Learned counsel for the appellants would submit that the deceased was a B Tech student, and so the notional income fixed by the Tribunal @ Rs.8,000/- per month is on the lower side. In the original claim petition, the appellants have stated MACA 639/17 5 the monthly income of the deceased as Rs.8,000/-, and that may be the reason for the Tribunal, for fixing the notional income of the deceased @ Rs.8,000/-. But the case of the appellants was that the deceased was a B Tech student in Mechanical (Automobile) Engineering and in addition, he was working as a Tutor at Entrance Coaching Centre, earning Rs.8,000/- per month. 8. The fact that the deceased was a B Tech (Automobile) Engineering student, having good prospects in future, was not taken into account by the Tribunal. Learned counsel for the appellants would rely on the decision **National Insurance Co. Ltd., Chennai v. Fathimath Zuhara @ Zuhra Razak and Another [2016 KHC 691 : 2016 (3) KLT 459]** to say that in the year 2005 notional income of an Engineering student, aged 19, was fixed by a Division Bench of this Court @ Rs.12,000/-. Accepting that argument, this Court is inclined to fix the notional income of deceased Unnikrishnan @ Rs.12,000/-. Based on **National Insurance Company Ltd. v.** MACA 639/17 6 **Pranay Sethi and Others, [(2017) 16 SCC 680]** , 40% addition can be given towards future prospects. So, his monthly income can be taken as Rs.16,800/- (12,000 + 40%). Since he was a bachelor, 50% is liable to be deducted towards personal expenses. So, the balance income would be Rs.8,400/-. The multiplier applicable is 18. So loss of dependency can be assessed as Rs.18,14,400/(8,400x12x18). After deducting Rs.12,96,000/- awarded by the Tribunal, they will get the balance Rs.5,18,400/- as enhanced compensation under the head ‘loss of dependency’. 9. Towards loss of estate, no amount was seen awarded by the Tribunal. Based on **Pranay Sethi’s** case cited _supra_ , the appellants are entitled to get Rs.15,000/- under the head ‘loss of estate’. 10. Towards funeral expenses, learned Tribunal awarded Rs.25,000/-. But going by **Pranay Sethi’s** case cited _supra_ , they were eligible to get Rs.15,000/- only. So Rs.10,000/awarded in excess, is liable to be deducted. MACA 639/17 7 11. Towards loss of consortium, appellants 1 and 2, the parents are eligible to get Rs.40,000/- each, which would come to Rs.80,000/-. The 3rd appellant-the sister of the deceased is not entitled to get compensation for loss of consortium. But learned Tribunal awarded Rs.75,000/- towards loss of love and affection, Rs.1,00,000/- to the parents for loss of their only son, and Rs.50,000/- to the sister for loss of brotherly care and support. Since compensation for loss of consortium is to be awarded, based on **Pranay Sethi’s** case, Rs.2,25,000/awarded by the Tribunal for loss of love and affection, loss of brotherly care, loss of only son etc. are liable to be adjusted from the amount eligible, i.e., Rs.80,000/-. So, Rs.1,45,000/is awarded in excess, and that amount is liable to be deducted from the award amount. 12. Hence, the total enhancement, under the head ‘loss of dependency’ and ‘loss of estate’ will come to Rs.5,33,400/-, and the total deductions will come to Rs.1,55,000/-. After adjusting the same, the balance amount entitled by the MACA 639/17 8 ## appellants as enhanced compensation is Rs.3,78,400/-. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of dependency|Rs.12,96,000/-|Rs.18,14,400/-||Rs.5,18,400/-| |Loss of estate|….|Rs.15,000/-||Rs.15,000/-| |Funeral expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of consortium|Rs.75,000/-<br>Rs.1,00,000/-<br>Rs.50,000/-|Rs.80,000/-|Rs.1,45,000/-|| |Loss of love and<br>affection||||| |Loss of only son for<br>appellants 1 and 2||||| |Loss of brotherly<br>care and support to<br>the 3rd appellant||||| |Total|||Rs.1,55,000/-|Rs.5,33,400/-| |Enhanced compensation is Rs.**3,78,400/-**(5,33,400 - 1,55,000)||||| ## 13. In the result, the appellants are entitled to get Rs.3,78,400/- as enhanced compensation. ## 14. The 2nd respondent-Insurer is directed to deposit Rs.3,78,400/- (Rupees Three Lakh Seventy Eight Thousand MACA 639/17 9 and Four Hundred only) with 9% interest per annum from the date of petition till the date of deposit, before the Motor Accidents Claims Tribunal, Vatakara, within a period of two months from the date of receipt of a copy of this judgment. Learned Tribunal shall disburse that amount to the appellants, in the ratio 40:40:20, after deducting their liabilities, if any, towards tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-