Vijayalakshmi and Vineetha v. S. Mohanan, S. Mohandas and The Branch Manager, National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 ``` ## **`MACA NO. 1006 OF 2014`** ``` AGAINST THE AWARD DATED 30.10.2010 IN OP(MV) 817/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANTS/PETITIONER:`** ``` 1VIJAYALAKSHMI AGED 51 YEARS W/O.LATE VIJAYAKUMAR,MOOLAVILA VEEDU, KALLUMKUNNIL,KURUMANDAL.B.WARD,PARAVOOR. ``` ``` 2VINEETHA AGED 28 YEARS D/O.LATE VIJAYAKUMAR DO- ``` ``` BY ADV SRI.UNNI. K.K. (EZHUMATTOOR) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1S.MOHANAN KANJIRAMILA VEEDU,KALAKODU.P.O,PARAVOOR, KOLLAM, PIN - 691108 2S.MOHANDAS THODIYIL VEEDU,KALAKKODE, PARAVOOR, PIN 691108 3THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD,PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD,KOLLAM, PIN 691001 ``` ``` BY ADVS. SRI.S.K.AJAY KUMAR SRI.SHYAM PADMAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1006 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** The appellants are the petitioners 1 and 2 in O.P.(M.V.) No.817/2006 on the files of the Motor Accident Claims Tribunal, Kollam. The claim petition was filed by the appellants along with the 3[rd] petitioner, the mother of the deceased. The 1[st] appellant is the wife, and the 2[nd] appellant is the daughter of the deceased. 2. The said claim petition was submitted by them seeking compensation for the death of one Vijayakumar due to the injuries sustained to him in a motor accident that occurred on 11.08.2006. The accident occurred when the bicycle ridden by the deceased was hit by an autorickshaw bearing registration No.KL 02 8526, driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said vehicle, and the 3[rd] respondent was the insurer. According to the appellants, the deceased was working as a coolie with a monthly income of Rs.5,000/-. He was aged 46 years. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent Insurance Company alone ``` MACA NO. 1006 OF 2014 ``` ``` 3 ``` contested the matter by filing a written statement, wherein they admitted the coverage of the policy but disputed the liability on various grounds. They also objected to the quantum of the claim. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellants, and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent, the driver of the autorickshaw. Therefore, the 3[rd] respondent being the insurer of the said vehicle, was held liable to pay the compensation and the quantum of compensation was fixed as Rs.3,52,000/-. The 3[rd] respondent was directed to deposit the said amount along with interest @ 7.5% per annum from the date of petition till realisation. However, as the claim petition remained dismissed for default from 27.01.2010 to 23.09.2010, the Tribunal excluded the said period to compute the interest. This appeal is submitted by the appellants seeking enhancement of compensation in such circumstances. 5. Heard Sri.Unni K.K., learned counsel appearing for the appellants and Sri. S.K. Ajay Kumar, learned counsel appearing ``` MACA NO. 1006 OF 2014 ``` ``` 4 ``` for 3[rd] respondent Insurance Company. 6. The main challenge raised in this appeal is pertaining to the amount of compensation awarded under the head of disability. The contentions mainly highlighted by the learned counsel for the appellants are concerning the wrong fixation of monthly income, lack of addition towards future prospects etc. When considering the materials placed on record and the position of law as settled by the various decisions of the Hon’ble Supreme Court, I find some force in the said contention. When considering the question of monthly income, it is seen that even though an amount of Rs.5,000/- was claimed, the Tribunal has taken only Rs.3,000/- as the monthly income. Considering that the accident occurred in the year 2006, the monthly income of Rs.3,000/- is grossly inadequate. As per the method of computation of monthly income evolved from the principles laid down by the Hon’ble Supreme Court 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], the monthly income of an ordinary ``` MACA NO. 1006 OF 2014 ``` ``` 5 ``` employee even in the absence of any evidence has to be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. To determine the monthly income for the subsequent years, an addition of Rs.5,00/- per year has to be made. This being a commonly followed procedure for determining the monthly income, it can be applied in this case, and thereupon, the monthly income in this case would come to Rs.5,500/- as the accident occurred in the year 2006. It is true that the appellants have claimed only Rs.5,000/- as the monthly income in the claim petition. However, it was pointed out that in **Minu Rout v. Satya Pradyumna Mohapatra [2013 (10) SCC 695],** the Hon’ble Supreme Court was pleased to take the monthly income of the claimant therein than claimed in the claim petition and therefore, I am of the view that, since Rs.5,500/- is a reasonable monthly income the same can be accepted. 7. The next aspect relates to the addition to be made towards future prospects. When applying the principles of **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** an addition of 25% of the monthly income has to be ``` MACA NO. 1006 OF 2014 ``` ``` 6 ``` made, as the deceased was aged 46 years at the time of the accident. While reassessing the compensation with the above revised criteria, the amount would come to Rs.7,15,000/- [ (5500 +25%) x 12 x 13 x 2/3]. The amount already awarded by the Tribunal under this head is Rs.3,12,000/- and thus the additional compensation would come to Rs.4,03,000/-. 8. The Tribunal has not awarded any amounts towards funeral expenses and loss of estate. As per **Pranay Sethi’s** case, the appellants are entitled to compensation under both these heads @ Rs.15,000/- each, and the same is accordingly granted. The next head which requires consideration is the loss of consortium. As per **United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other** [ 2020 (3) KHC 760], all the petitioners, being the daughter, wife and the mother of the deceased, are entitled to compensation @ Rs.40,000/- under the said head. The amount awarded by the Tribunal is Rs.10,000/-. In addition to the said amount the Tribunal awarded a further sum of Rs.10,000/- under the head of loss of love and affection. As it is a well settled position in the light **Satinder Kaur’s case** and **New** ``` MACA NO. 1006 OF 2014 ``` ``` 7 ``` **India Assurance Company Ltd. v. Somwati & Ors.** [(2020) 9 SCC 644] that when compensation is awarded for loss of consortium, separate compensation need not be granted for loss of love and affection, I am of the view that, Rs.10,000/- awarded for loss of love and affection in this case can be adjusted towards the compensation for loss of consortium. Thus, the additional compensation receivable by the appellants under the head of loss of consortium is determined as Rs.1,00,000/-. Thus, the total amount of compensation in addition to the amount awarded by the Tribunal is determined as Rs.5,33,000/- (4,03,000 + 15000 + 15000 +100000). In the light of the aforesaid findings and observations, this appeal is allowed. The award dated 30.10.2010 passed by the Motor Accident Claims Tribunal, Kollam, in O.P.(M.V.) No.817/2006 is hereby modified by granting an additional compensation of Rs.5,33,000/- (Rupees five lakh and thirty three thousand only) and the same shall be deposited by the 3[rd] respondent Insurance Company with interest @ 7.5% per annum from the date of petition till realisation. However, it is clarified that, ``` MACA NO. 1006 OF 2014 ``` ``` 8 ``` while computing the interest on the said compensation, the period between 27.01.2010 and 23.09.2010 can be excluded. Besides the same, as this appeal is filed with a petition to condone the delay of 1150 days, the appellants cannot claim interest for the said period as well. The said amount shall be deposited by the 3[rd] respondent Insurance Company with interest in the manner as mentioned above within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs