V. Thulasiraj and others v. ICICI Lombard General Insurance Company Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 MACA NO. 1978 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 1424/2009 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 V.THULASIRAJ S/O.S.V.GIRI, MANAYATHU PARAMBIL HOUSE, KUMBALAGI P.O, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 2 T.VIGNAKALA MINOR D/O.V.THULASI RAJ, MANAYATHU PARAMBIL HOUSE, KUMBALAGI P.O, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 3 T.VIGNESH S/O.V.THULASI RAJ, MANAYATHU PARAMBIL HOUSE, KUMBALAGI P.O, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 4 M.V.KRISHNAN S/O.VELU, MANAYATHU PARAMBIL HOUSE, KUMBALAGI P.O, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 5 RAJA LAKSHMI W/O.KRISHNAN, MANAYATHU PARAMBIL HOUSE, KUMBALAGI P.O, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. BY ADVS. P.V.BABY A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 V.V.SUNIL (DELETED) S/O.VIJAYAN, VETTUVANKUNNIL HOUSE, KOLAMBU, PANANGATTIRI P.O, KOLANKODE, PALAKKAD - 678 506. 2 ICICI LOMBARD GENERAL INSURANCE COMPANY 3RD FLOOR, KANNENKERI ESTATE, MARINE DRIVE, KOCHI - 682 031. 3 SUMESH S/O.RAMACHANDRAN, 9/68, THAZHATTHU HOUSE, PURANATTUKARA, THRISSUR - 680 551. M.A.C.A.No.1978 of 2012 : 2 : 4 BABY S/O.CHATHAN, KOOTHUPARAMBU HOUSE, KANNADI, PALAKKAD - 678 701. 5 THE ORIENTAL INSURANCE COMPANY LTD. REGIONAL OFICE, ERNAKULAM 682 016. (RESPONDENT NO.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT/PETITIONER AS PER ORDER DATED 16.02.2023 IN IA 1/2023 IN MACA 1978/2012) BY ADVS. SRI.LATHEESH SEBASTIAN SMT.LATHA SUSAN CHERIAN-SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1978 of 2012 : 3 : ## **DEVAN RAMACHANDRAN, J.** **========================= M.A.C.A.No. 1978 of 2012 ========================== Dated this the 15[th] day of March, 2023** ## **JUDGMENT** This matter is of the year 2012 and has not been admitted. However, both sides are _ad idem_ that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this appeal and proceed to dispose it of finally, with the consent of both sides. 2. The legal heirs of Latha, who unfortunately died in a road accident on 12.06.2009 – when she was riding as a pillion on a motorcycle being hit by the offending autorickshaw, thus being consequently thrown to the road and being driven over by the 2[nd] offending bus – have filed this appeal impugning the adequacy of the compensation awarded by the Motor Accidents Claims Tribunal, Ernakulam (the 'Tribunal' for short). 3. Sri.A.N.Santhosh – learned counsel for the appellants, argued that the learned Tribunal has grossly erred in adopting the notional income of the deceased to be a mere Rs.2,500/- per month, when the evidence on record establishes that she was a tailor by profession. He argued that, therefore, her claimed income of M.A.C.A.No.1978 of 2012 : 4 : Rs.8,000/- per month ought to have been adopted; and further, that the compensation awarded by the Tribunal under the heads “Funeral Expenses”, “Loss of Estate” and “Loss of Consortium” is woefully insufficient. He thus prayed that this appeal be allowed. 4. Sri.Latheesh Sebastian, learned counsel appearing for the 2[nd] respondent – which had insured the first of the offending vehicles namely, the autorickshaw – argued that the compensation awarded by the Tribunal is without error and, therefore, prayed that this appeal be dismissed. 5. Smt.Latha Susan Cherian – learned counsel appearing for respondent No.5, argued that her client had insured the 2[nd] offending vehicle, namely the bus; but that the finding of contributory negligence on its driver is without any basis. She, however, conceded that her client has not filed any appeal against the impugned Award of the learned Tribunal. 6. I have evaluated the afore rival submissions on the touchstone of various materials and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be acted upon by this Court without dispute. 7. The facts involved in this case are not in dispute. The causation of the accident and the injuries sustained by the deceased are beyond controversy, as also the fact that she was hit M.A.C.A.No.1978 of 2012 : 5 : by the autorickshaw and thrown to the road, then being run over by the 2[nd] offending vehicle, namely the bus. 8. Therefore, the only question now to be decided is whether the compensation awarded to the claimants, who are the legal heirs of deceased Latha, is in order. 9. I must say that the notional income adopted by the Tribunal in favour of the deceased, namely Rs.2,500/- per month, cannot appeal to reason or logic. This is because, even when the Tribunal found that there was no evidence to establish that the deceased was working as a tailor, it ought to have adopted the notional income taking note of the postulations of the Hon'ble Supreme Court in various judgments, finally resting with **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236].** In this judgment, the Hon'ble Court has declared that, even in the case of a person with an unascertainable income in the year 2009 – when the accident occurred – the minimum notional income to be adopted is Rs.7,000/- per month. In **Rajani v. Oriental Insurance Co.Ltd. [2022 (5) KLT Online 1012 (SC)],** the Hon'ble Supreme Court has further said that in the case of a person involved in a technical avocation, a more robust view has to be taken. Of course, when there is no evidence to show that the deceased was working as a tailor, the ratio of **Rajani (supra)** may not apply. M.A.C.A.No.1978 of 2012 : 6 : 10. That being said, in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662],** the Hon'ble Supreme Court has further declared that, under the heads “Funeral Expenses” and “Loss of Estate”, a minimum of Rs.15,000/- ought to be granted; and that the dependents of the deceased are entitled to consortium at the rate of Rs.40,000/- per head. I fail to understand why the Tribunal did not grant the afore amounts in the impugned Award. I am certain that the afore requires to be enhanced suitably. 11. That said, adverting to the fact that the deceased was only 27 years old at the time of death, being survived by husband, children and parents, her notional income is certainly eligible to be enhanced by 40% towards future prospects, and am guided in this regard by the declarations in **Pranay Sethi (supra)** . So said, the Tribunal has erred in deducting 1/3[rd] from the notional income of the deceased because she is survived by five dependents; and as per the judgment in **Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)],** only 1/4[th] could have been reduced. Resultantly, this appeal is partly allowed in the following manner: (a) The compensation under the head “Loss of Dependency” is revised to Rs. 14,99,400/-, reckoning the notional income of the deceased to be Rs.7,000/- per M.A.C.A.No.1978 of 2012 : 7 : month with 40% future prospects added to it and 1/4[th] of the same deducted as personal expenses. (b) The compensation under the head “Funeral Expenses” is enhanced to Rs.15,000/-, from Rs.5,000/awarded by the Tribunal. (c) The compensation under the head “Loss of Estate” is enhanced to Rs.15,000/-, from Rs.2,500/- granted by the Tribunal. (d) The compensation for “Loss of Consortium” is enhanced to a total of Rs.2,00,000/- at the rate of Rs.40,000/- in favour of each of the appellants. (e) Axiomatically, the compensation under the heads “Pain and Sufferings” and “Loss of Love and Affection” are both deleted. Consequently, the appellants will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 7.5% (modifying the rate of interest of 8% as awarded by the Tribunal in view of the escalation granted by this Court), from the date of claim until it is recovered. They will also be entitled to proportionate costs, on the enhanced amount, as ordered by the Tribunal. All other findings of the learned Tribunal, including the contributory negligence found on the two offending vehicles and M.A.C.A.No.1978 of 2012 : 8 : the right of the 5[th] respondent – insurance company, to recover from respondents 3 and 4 – the owner and driver of the offending bus – are confirmed and left intact. **Sd/DEVAN RAMACHANDRAN JUDGE** anm