Usha V. Pillai and others v. Bajaj Allianz General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 15[TH] DAY OF JUNE 2023 / 25TH JYAISHTA, 1945** **MACA NO. 1595 OF 2013** **AGAINST THE AWARD DATED 22.08.2012 IN OPMV 1020/2009 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANTS/PETITIONERS:** **1 USHA V.PILLAI W/O.LATE VIJENDRAN PILLAI, PONCHARAKULAM THODIYIL, KURUMANDAL P.O., PARAVOOR.** - **2 JAYALEKSHMI** **D/O.LATE VIJENDRAN PILLAI, PONCHARAKULAM THODIYIL, KURUMANDAL P.O., PARAVOOR.** **3 JYOTHI LEKSHMI D/O.LATE VIJENDRAN PILLAI, PONCHARAKULAM THODIYIL, KURUMANDAL P.O., PARAVOOR.** **BY ADVS. SRI.PRATHEESH.P SMT.CHITHRA.S.BABU** ## **RESPONDENT/3RD RESPONDENT:** **THE MANAGER BAJAJ ALLIANCE GENERAL INSURANCE CO.LTD, THIRUVANANTHAPURAM** **T.C.NO.28/2222, ANUGRAHA, PAZHAVANGADI, M.G.ROAD,** **BY ADVS. SRI.LAL GEORGE SEBASTIAN VARGHESE(K/141/2000)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1595 OF 2013 :2:** ## **JUDGMENT** The appellants are the petitioners in O.P.(MV) No.1020 of 2009 on the files of the Motor Accidents Claims Tribunal, Kollam. The parties are referred to as per their status in the claim petition. 2. The petitioners are the legal heirs of deceased Vijayendran Pillai. On 30.09.2008, while the deceased was riding a motor cycle, a bus bearing Registration No. KL-3/K 2664, driven by the 2[nd] respondent rashly and negligently, hit against the motor cycle. As a result, the deceased fell down and sustained serious injuries and later, succumbed to the injuries. The 1[st] respondent is the owner and the 3[rd] respondent is the insurer of the offending vehicle. According to the petitioners, the accident happened due to the negligent driving of the 2[nd] respondent. The petitioners claimed an amount of Rs.8,00,000/- as total compensation for the death of the deceased. **MACA NO. 1595 OF 2013 :3:** 3. Respondents 1 and 2 remained _ex parte_ before the Tribunal. On the side of the petitioners, Exts.A1 to A12 were marked and PWs 1 and 2 were examined. 4. The 3[rd] respondent insurance company entered appearance and filed a written statement admitting the existence of a valid policy in respect of the offending vehicle; however, disputed the age, income and occupation of the deceased. They contended that the compensation claimed is exorbitant. 5. The Tribunal found that the accident happened mainly due to the negligence on the part of the 2[nd] respondent, the driver of the bus; but the deceased has also contributed to the accident and apportioned the negligence between the driver and the deceased in the proportion 95:5. The Tribunal awarded a total amount of Rs.4,00,072/- as total compensation out of which the 3[rd] respondent insurance company was directed to indemnify the 1[st] respondent for an amount of Rs.3,81,000/-(95%) only, **MACA NO. 1595 OF 2013 :4:** finding 5% contributory negligence against the deceased, with 7.5% interest per annum from the date of petition till realisation along with proportionate costs. Aggrieved by the quantum of compensation awarded by the Tribunal as also the finding regarding contributory negligence on the part of the deceased, the petitioners have approached this Court. 6. The Tribunal found that as per Ext.A2 mahazar, the accident happened almost in the middle of the road. The Tribunal observed that there is no explanation as to why the deceased who was supposed to keep the southern side of the road, rode the vehicle towards the middle. Accordingly, the Tribunal held that there is contributory negligence on the part of the deceased as well the 2[nd] respondent. The fact that the accident occurred in the middle of the road cannot lead to the conclusion that the deceased has contributed to the accident. Ext.A6 is the copy of the charge sheet laid in the crime registered in connection with the accident. The finding of the Tribunal **MACA NO. 1595 OF 2013 :5:** that the deceased has contributed to the accident relying on Ext.A2 mahazar cannot be sustained. Therefore, the finding of contributory negligence on the part of the deceased is set aside. 7. The deceased was a Field Executive aged 55 years at the time of the accident. As per Ext.A12 S.S.L.C. Book, the date of birth of the deceased is 22.10.1952. Therefore, on the date of the accident, the deceased had not completed 56 years of age and the running age was 55 years. In **Meera P.O and Others** v. **Ananda P. Naik and Others** [2022 (1) KHC 591], this Court held that the multiplier to be adopted is the specified age mentioned in the Table in **Sarla Verma** _**v**_ **. Delhi Transport Corporation [2009 (6) SCC 121: AIR 2009 SC 3104]** and not the running of age into the next group. The deceased, therefore, belongs to the age group 51-55. Accordingly, the multiplier to be adopted is '11'. 8. The Tribunal, in the absence of any other evidence, **MACA NO. 1595 OF 2013 :6:** fixed the notional income of the deceased as Rs.5,000/- per month. Going by the dictum laid down by the Hon'ble _**v**_ Supreme Court in **Ramachandrappa . Manager, Royal Sundaram Alliance Insurance Company Limited** [2011 (13) SCC 236 : AIR 2011 SC 2951], the notional income of the deceased has to be taken as Rs.6,500/-. Therefore, I refix the notional monthly income of the deceased as Rs.6,500/-. The deceased left behind his wife and two daughters. The 3[rd] petitioner is given in marriage. Therefore, taking into account the number of dependents as 2, the deduction towards personal and living expenses of the deceased is 1/3 [ _**Sarla Verma** (supra)]_ 9. In the light of the dictum laid down by the Hon'ble Supreme Court in _**Sarla Verma** (supra)_ , towards his personal and living expenses, a deduction of 1/3[rd] of the income of the deceased has to be made. The deceased, being a field executive and aged between 50 and 59, 10% of the income can be added towards future prospects in the **MACA NO. 1595 OF 2013 :7:** light of the decision reported in **National Insurance Co. Ltd.** _**v**_ **. Pranay Sethi** [2017 (16) SCC 680]. Therefore, the income would come to Rs.7150 (6,500+10% increase). Being so, the compensation for loss of dependency is reworked as **Rs.6,29,200/-** [7150x11x12x2/3]. Since the petitioners have already awarded an amount of Rs.3,60,072/-, they are entitled for an enhanced amount of **Rs.2,69,128/-** [6,29,200-3,60,072] as compensation under the above head. 10. Towards compensation for loss of consortium, the petitioners were awarded Rs.10,000/-. Going by the dictum laid down by the Hon'ble Supreme Court in **Pranay Sethi** (supra), the petitioners are entitled for an amount of Rs.40,000/- each towards the said head and the amount would come to Rs.1,20,000/- (40,000x3). Therefore, an enhanced amount of **Rs.1,10,000/-** (1,20,000-10,000) is awarded under the above head. 11. The Tribunal has awarded an amount of **MACA NO. 1595 OF 2013 :8:** Rs.10,000/- under the head loss of love and affection. In **United India Insurance Co.Ltd.** v. **Satinder Kaur** [AIR 2020 SC 3076], the Hon'ble Supreme Court has held that when compensation is awarded under the head loss of consortium, there is no justification in awarding compensation for loss of love and affection as a separate head. Since the petitioners are compensated under the head loss of consortium, no further amount is to be awarded towards loss of love and affection. Therefore, **Rs.10,000/-** has to be deducted from the total compensation. 12. Towards compensation for funeral expenses, an amount of Rs.10,000/- has been awarded by the Tribunal. Going by the decision in _**Pranay Sethi**_ (supra), the petitioners are entitled for an amount of Rs.15,000/- and therefore, an enhanced amount of **Rs.5,000/-** (15,00010,000) is granted under the said head. 13. Rs.5,000/- has been awarded under the head **MACA NO. 1595 OF 2013 :9:** compensation for loss of estate. Going by the decision in _**Pranay Sethi**_ (supra), the petitioners are entitled for an amount of Rs.15,000/- towards compensation under the said head. the are Accordingly, petitioners granted **Rs.10,000/-** (15,000-5000) additionally. 14. I find that the Tribunal has awarded just and reasonable compensation under other heads. In the result, this appeal is allowed and the petitioners are entitled for an enhanced amount of **Rs.3,84,128/-** (Rupees three lakhs ninety six thousand one hundred and twenty eight only) [2,69,128 + 1,10,000 + 10,000 + 5,000 – 10,000]. Out of the total award amount, the Tribunal has deducted a sum of Rs.19,072/- towards contributory negligence. Since the finding regarding contributory negligence is set aside, the petitioners are entitled for a total enhanced amount of Rs.4,03,200/- (3,84,128 + 19,072). The respondent insurance company shall deposit the amount with 7.5% interest per annum from the date of **MACA NO. 1595 OF 2013 :10:** petition till realisation and costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB