Venu V. Kumar and Others v. Fathima and The National Insurance Company Ltd

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 21 ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 MACA NO. 1457 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 14.05.2014 IN OPMV NO.1296 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` - `1 VENU V.KUMAR AGED 48 YEARS S/O. LATE KUMARAN V.A` - `2 P.K.SUNITHA AGED 44 YEARS W/O. VENU V. KUMAR` - `3 ANJU V. KUMAR AGED 19 YEARS D/O. VENU V. KUMAR, ALL THE APPELLANTS ARE RESIDING AT SARAVANA NERRWA - 235, ANJUMANA ROAD, EDAPPALLY, COCHIN -24.` ``` BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM ``` ## `RESPONDENTS/RESPONDENTS:` - `1 FATHIMA 5/305 VALIYA PEEDIAKKAL HOUSE, THRIKKAKKARA P.O., COCHIN - 682 030.` - `2 THE NATIONAL INSURANCE COMPANY LTD ERNAKULAM - 682 011.` - `3 THE NATIONAL INSURANCE COMPANY LTD KOLKATTA - 700 71 (DELETED)` - `4 VYAYALAKSHMI M(DELETED) W/O. MARI B, 26, VYAYANILAYAM, ST.THOMAS CHURCH ROAD, OOTY, NEELAGIRI, TAMILNADU - 642 110.` - `5 ASHOKAN S (DELETED) S/O. SUBBAIAH, AKAMATCHIPURAM, ATHANGARAIPATTI, PERIYUR TALUK, MADURAI, TAMILNADU - 625 001.` - `[R3, R4 and R5 respondents are deleted from the party` MACA 1457 OF 2015 2 ``` array as per order dated 16/6/2022 in IA 1/2022] ``` ``` BY ADVS. SRI.LAL K.JOSEPH ``` ``` SRI.V.S.SHIRAZ BAVA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1457 OF 2015 3 ## **`J U D G M E N T`** ``` The claimants in OP(MV) No.1296 of 2009 on ``` ``` the file of Motor Accidents Claims Tribunal, Ernakulam are the appellants herein impugning the award on the ground of inadequacy of compensation. ``` ``` 2. Son of appellants 1 and 2 and brother of the 3rd appellant, by name Rahul V. Kumar died in a road traffic accident occurred on ``` ``` 15/2/2009 at 2.30 am, while he was travelling ``` ``` in KL-07/BH 2297 car through ``` ``` Coimbatore-Mettupalayam road. The car dashed ``` ``` against a lorry which was parked on the left side of the road due to the rash and negligent ``` ``` driving of the car by its driver. As a result of the hit, Sri.Rahul V. Kumar and four others including the driver of the car succumbed to ``` MACA 1457 OF 2015 4 ``` the injuries. The deceased was a 23 year old boy pursuing his degree course(BBA) and IATA, ``` ``` and was doing some part time job also, earning monthly income of Rs.4,500/-. His parents and sister approached the Tribunal claiming ``` ``` compensation of Rs.5 Lakh, but learned Tribunal awarded only Rs.4,29,000/-, and hence this appeal. ``` `3. The 1st respondent was the owner of the` ``` offending car and the 2nd respondent was its insurer. ``` ``` 4. The 2 nd respondent insurance company entered appearance, and admitted the policy. ``` `5. Now this Court is called upon to answer` ``` whether there is any irregularity, illegality or impropriety in the impugned award warranting interference by this Court. ``` MACA 1457 OF 2015 5 `6. Heard learned counsel for the appellants` ``` and learned counsel for the 2 nd respondent Insurance company. ``` `7. Learned counsel for the appellants would` ``` submit that the deceased was a 23 year old student doing some part time job also. His ``` ``` monthly earning in the claim petition was stated to be Rs.4,500/-. Relying on the decision Ramachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Limited, ``` ``` [AIR 2011 SC 2951] , learned counsel for the ``` ``` appellants would submit that he was eligible to ``` ``` get his monthly income fixed @ Rs.7,000/-, and ``` ``` apart from that, he was eligible for 40% addition also, towards future prospects. Learned counsel for the 2nd respondent-Insurer would submit that since the income claimed in the claim petition was only Rs.4,500/-, learned ``` MACA 1457 OF 2015 6 ``` Tribunal ought not have gone beyond that. Learned counsel for the appellants relying on the decision V. Mekala v. M Malathi and Another ``` ``` [(2014) 11 SCC 178] and Minu Rout and Another ``` ``` v. Satya Pradyumna Mohapatra and Others [2013 KHC 4701] would submit that for awarding just and reasonable compensation, there is no bar in fixing monthly income exceeding the claim in the claim petition. Moreover, in V.Mekala’s case cited supra, notional income of a student aged 16 years, was fixed by the Apex Court @ Rs.10,000/-. On going through that decision, it could be seen that a brilliant girl aged 16 years suffered 70% permanent disability. In the ``` ``` case on hand, there is nothing to show the academic brilliance of the deceased, and his legal heirs were claiming monthly income of Rs.4,500/- for him. The accident was in the ``` MACA 1457 OF 2015 7 ``` year 2009 and the total compensation claimed by the appellants was Rs.5,00,000/- and Tribunal awarded Rs.4,29,000 with 8% interest from the date of petition. As held by the Apex Court, in the celebrated decision Sarla Verma ``` ``` v. Delhi Transport Corporation [2010 (2) KLT ``` ``` 802 (SC)] , ‘Just Compensation’ is adequate compensation which is fair and equitable, on ``` ``` the facts and circumstances of the case, to ``` ``` make good the loss suffered as a result of the wrong, as far as money can do so, by applying ``` ``` the well settled principles relating to award ``` ``` of compensation. It is not intended to be a ``` ``` bonanza, largesse or source of profit. In the ``` ``` case on hand, the notional income fixed by the Tribunal @ Rs.3,000/- is obviously at the lower side. In the appeal memorandum also, their case is that though the deceased was earning ``` MACA 1457 OF 2015 8 ``` monthly income of Rs.4,500/-, the tribunal arbitrarily fixed the notional income @ ``` ``` Rs.3,000/-. So this Court is inclined to take his monthly income as Rs.4,500/- as claimed by the appellants. He was eligible to get 40% addition also towards future prospects also, as he was aged below 40. If so, his monthly income could have been taken as Rs.6,300/-. Since he was a bachelor, 50% was liable to be deducted, towards his personal expenses. So the balance income would be Rs.3,150/-. The multiplier applicable is 18 as he was aged only 23. So, ``` ``` the compensation for loss of dependency could ``` ``` be re-assessed as Rs.6,80,400/- (3150x12x18). Learned Tribunal awarded only Rs.3,24,000/-. ``` ``` So the appellants are eligible to get the balance amount of Rs.3,56,400/- as enhancement under the head loss of dependency. ``` MACA 1457 OF 2015 9 ``` 8. Towards loss of love and affection, learned Tribunal awarded only Rs.75,000/-. As per the decision National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC ``` ``` 680], appellants 1 and 2 are eligible to get Rs.40,000/- each amounting to Rs.80,000/- in total. So they are eligible to get the balance amount of Rs.5,000/- as enhanced compensation. ``` ``` The 3rd appellant being the sister of the deceased, she is not entitled to get compensation for loss of consortium. ``` `9. Towards loss of estate, no amount was` ``` awarded by the Tribunal. Going by Pranay Sethi’s case (cited supra), the appellants are entitled to get Rs.15,000/-, under the head loss of estate. ``` `10. The compensation awarded under all other` MACA 1457 OF 2015 10 ``` heads seems to be reasonable and hence it needs no modification. ``` ``` 11. The enhanced compensation awarded in this ``` ``` appeal is stated in the table below:- ``` |Head of claim|Amount<br>awarded by the<br>Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of<br>dependency|3,24,000/-|6,80,400/-<br>(3150x12x18)|3,56,400/-| |Loss of<br>consortium|75,000/-|80,000/-<br>(40,000 each to<br>appellants 1 & 2)|5,000/-| |Loss of estate|—-|15,000/-|15,000/-| |TOTAL 3,76,400/-|||| `12. So the appellants are entitled to get` ``` enhanced compensation of Rs.3,76,400/- with 8% interest per annum. ``` ``` 13. The 2 nd respondent/insurer is directed ``` ``` to deposit the enhanced compensation of ``` ``` Rs.3,76,400/- with 8% interest per annum, from ``` ``` the date of petition till the date of deposit, ``` ``` before the Motor Accidents Claim Tribunal, ``` MACA 1457 OF 2015 11 ``` Ernakulam, within a period of two months from ``` ``` the date of receipt of a copy of this judgment. The 3rd appellant being the sister of the deceased learned Tribunal shall disburse Rs.1 lakh to the 3rd appellant, and the balance amount with interest for the whole amount shall be disbursed equally to appellants 1 and 2, after deducting their liabilities, if any, towards Tax, balance court fee, legal benefit fund etc. ``` ``` The appeal is allowed to the extent as ``` ``` above, and no order is made as to costs. ``` ``` Sd/- ``` ## **`SOPHY THOMAS,`** ## **`JUDGE`** ``` ska ```