USHA v. SHEFEER and THE ORIENTAL INSURANCE CO. LTD.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023/7TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2246 OF 2012`** ## **`OP(MV) 916/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,`** ## **`MUVATTUPUZHA`** ## **`APPELLANTS/PETITIONERS:`** - `1 USHA, W/O. LATE SURESH, KODAPPANANICKAL HOUSE, ENANALLOOR VILLAGE, AYAVAN P.O., MUVATTUPUZHA.` - `2 JITHIN K.S., S/O. LATE SURESH, KODAPPANANICKAL HOUSE, ENANALLOOR VILLAGE, AYAVAN P.O., MUVATTUPUZHA.` - `3 JIBI K.S., S/O. LATE SURESH (MINOR), REPRESENTED BY MOTHER USHA, W/O. LATE SURESH, KODAPPANANICKAL HOUSE, ENANALLOOR VILLAGE, AYAVAN P.O., MUVATTUPUZHA.` - `4 BHARGAVI, W/O. GOVINDAN,KODAPPANANICKAL HOUSE, ENANALOOR VILLAGE, AYAVAN P.O, MUVATTUPUZHA. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHEFEER, S/O. ALIYAR, POTHNAL, ERATTUPETTA, PIN 686412` - `2 THE ORIENTAL INSURANCE CO. LTD., CHERANVELIL (BUILDINGS), K.K. ROAD, KANJIRAPALLY,` ``` PIN - 686 507. BY ADVS. SRI.M.JACOB MURICKAN GEORGE A.CHERIAN(K/611/2014) (b/o) ADV LATHA SUSAN CHERIAN -SC ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ## **`ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.2246/2012 : 2 : ## JUDGMENT The appellants are the petitioners in OP(MV) No.916/2007 on the files of the Motor Accident Claims Tribunal, Muvattupuzha. 2. The said claim petition was submitted by them seeking compensation for the death of one Suresh, due to the injuries sustained in a motor accident that occurred on 02.07.2007. The 1[st] appellant is the wife, the 2[nd] and 3[rd] appellants are the children and the 4[th] appellant is the mother of the deceased. 3. According to the appellants, the accident occurred when the motorcycle ridden by the deceased was hit by a car bearing registration No.KL-05 P 2768 driven by the 2[nd] respondent herein. The vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent herein. According to the appellants, the deceased was working as a Marble and Granite worker with a monthly income of Rs.8,000/-. He was aged 39 years, at the time of the accident. The claim petition was submitted in such circumstances. M.A.C.A. No.2246/2012 : 3 : 4. The 1[st] and 2[nd] respondents filed written statement disputing the negligence on their part. It was also contended by them that, the car was insured with the 3[rd] respondent and therefore, if at all there is any liability, that has to be indemnified by the 3[rd] respondent. 5. The 3[rd] respondent admitted the coverage of policy, but disputed the liability on various grounds. The negligence as well as the quantum of compensation were also disputed by them. 6. The evidence in this case consists of Exts.A1 to A12 from the side of the appellants and Ext.B1, the policy copy, was marked from the side of the respondents. 7. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the car and being the insurer, the 3[rd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.5,92,500/- and the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 8% from the date of petition till realisation with proportionate costs. This appeal is submitted by the appellants in M.A.C.A. No.2246/2012 : 4 : such circumstances seeking enhancement of compensation. 8. Heard Sri. T.K. Koshy, the learned counsel appearing for the appellants and Smt. Latha Susan Cherian, the learned counsel appearing for the 3[rd] respondent. 9. The only dispute in this case relates to the quantum of compensation. On going through the materials placed on record, I find that the amounts awarded by the tribunal under certain heads are on the lower side. As far as the amount awarded under the head of loss of dependency is concerned, for determining the said compensation, the tribunal took the monthly income of the deceased as Rs.4,000/- which appears to be on the lower side. According to the appellants, the deceased was working as a Marble and Granite tile worker and the said fact was not seriously disputed by the respondents. The learned counsel for the appellant places reliance upon Exts.A10 to A12 which are the certificates issued by the Chairman of Muvattupuzha Municipality and one Indira Gandhi Memorial Trust, Nellikuzhy, wherein they certified that the deceased carried out the work of paving the tiles in their properties. M.A.C.A. No.2246/2012 : 5 : 10. Despite all the above, the Tribunal took the monthly income as Rs.4,000/- which appears to be not reasonable. It is to be noted in this regard that, as per the method of computation evolved from the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], even in respect of an ordinary worker without any special skills, the monthly income can be fixed as Rs.6,000/- in respect of an accident occurred in the year 2007. In this case, it is an admitted fact that he was a tile worker, a skilled employee. Hence, a slightly higher monthly income than what is usually taken in respect of an ordinary worker can be taken. Thus, in the facts and circumstances of the case, I deem it appropriate to take the monthly income as Rs.7,000/-. Since the deceased was 39 years old, an addition of 25% has to be made towards future prospects. The deceased left behind four dependents, hence, ¼ of the same has to be deducted towards personal expenses. While reassessing the compensation with the said criteria, the amount to be awarded under the head of loss of dependency would come to M.A.C.A. No.2246/2012 : 6 : Rs.13,23,000/-. [(7,000 +40% ) x 12 x 15 x ¾]. The amount already awarded by the Tribunal under this head is Rs.5,40,000/-; thus, the additional amount would come to Rs.7,83,000/-. 11. When moving on to the other heads, it can be seen that the Tribunal awarded only Rs.5,000/- under the head of funeral expenses and in the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] a further sum of Rs.10,000/- is granted. Similarly, the amount awarded towards loss of estate was Rs.2500/- only and thus, a further sum of Rs.12,500/- is granted under the said head. As loss of consortium, the Tribunal awarded Rs.15,000/- only, whereas in the light of the observations made by the Honourable Supreme Court in Magma General Insurance Co.Ltd. v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130], and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760], all the appellants being wife, children and mother of the deceased are entitled to compensation @ Rs.40,000/- each and thus, the compensation for loss of consortium is revised as Rs.1,60,000/-. But at this juncture, learned counsel for the Insurance Company would point out that, in addition to the M.A.C.A. No.2246/2012 : 7 : compensation for loss of consortium, the Tribunal awarded a sum of Rs.20,000/- under the head of loss of love and affection and a further sum of Rs.5,000/- under the head of loss of care and protection to the 4[th] petitioner. In the light of observations in Satinder Kaur’s case, when compensation for loss of consortium is already awarded, further amounts should not have been granted under the said heads. Therefore, the amounts awarded under those heads can be adjusted against the amount awarded by this Court under the head of loss of consortium. Thus, the additional compensation receivable by the appellant under the head of loss of consortium would come to Rs.1,20,000/-. 12. Thus, the total additional compensation receivable by the appellant is determined as Rs.9,25,500/- (783000 + 10000 + 12500 + 120000) (Rupees Nine lakh twenty five thousand and five hundred only). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 23.08.2011 in O.P.(M.V.) No.916/2007 passed by the Motor Accident Claims Tribunal, Muvattupuzha is hereby modified by awarding a further sum of Rs.9,25,500/- (Rupees Nine lakh twenty five thousand and five M.A.C.A. No.2246/2012 : 8 : hundred only) and the 2[nd] respondent Insurance Company shall deposit the said amount along with interest at the rate as ordered by the Tribunal from the date of petition till realisation and with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/scs