Vijayamma and others v. Thomas K., Anoop C.A., and The General Manager, Royal Sundaram Alliance General Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 28[TH] DAY OF JUNE 2024 / 7TH ASHADHA, 1946 ``` ## **`MACA NO. 822 OF 2019`** ## **`AGAINST THE AWARD DATED 05.12.2018 IN O.P (MV) NO.652 OF 2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR`** ## **`APPELLANTS/PETITIONERS :-`** - **`1 VIJAYAMMA, AGED 48 YEARS W/O CHANDRAN @ CHANDRASEKHARAN, VINEETHA BHAVN, MURIYAN PANCHALI, ARYANKAVU VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.`** - **`2 VINEETHA, AGED 29 YEARS D/O CHANDRAN @ CHANDRASEKHARAN, VINEETHA BHAVN, MURIYAN PANCHALI, ARYANKAVU VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.`** - **`3 ANITHA, AGED 27 YEARS D/O CHANDRAN @ CHANDRASEKHARAN, VINEETHA BHAVN, MURIYAN PANCHALI, ARYANKAVU VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.`** - **`4 SARASAMMA, AGED 70 YEARS M/O CHANDRAN @ CHANDRASEKHARAN, VINEETHA BHAVN, MURIYAN PANCHALI, ARYANKAVU VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.`** ## **`BY ADV ANCHAL C.VIJAYAN`** ## **`RESPONDENTS/RESPONDENTS :-`** - **`1 THOMAS.K., KOCHUTHUNDIL VEEDU, KOTTAVASAL, ARAYANKAVU, KOLLAM DISTRICT. PIN - 691 309.`** - **`2 ANOOP C.A., S/O. CHELLAPPAN, ANU BHAVAN, EDAPPALAYAM, KAZHUTHURUTTI, KOLLAM DISTRICT. PIN - 691 309.`** - **`3 THE GENERAL MANAGER, ROYAL SUNDARAM ALLIANCE GENERAL INSURANCE COMPANY LIMITED, TC - 11/1971(7), 2ND FLOOR, MUDUMBIL TOWERS, MG ROAD, PLAMOOD JUNCTION, PATTOM, THIRUVANANTHAPURAM. PIN - 695 004.`** ``` MACA NO. 822 OF 2019 ``` 2 ## **`SRI. P. JACOB MATHEW -SC`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 822 OF 2019 ``` 3 ## **JUDGMENT** This appeal is filed by the claimants in O.P (MV) No.652 of 2013 on the file of the Motor Accidents Claims Tribunal, Punalur. The respondents herein are the respondents before the tribunal. 2. According to the appellants/claimants, on 19.04.2011 at about 11.30 am, the deceased was travelling in a pickup van bearing Registration No.KL-25A/1093 for unloading timber which was loaded in the afore vehicle. While the van was going through Aryankavu-Chingari public road, it capsized into the left side of the road and as a result of it, the deceased had sustained serious injuries. Later, on 14.05.2011, he succumbed to the injuries. The appellants approached the tribunal claiming a total compensation of Rs.15,00,000/-. 3. The 3[rd] respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, the evidence consisted of oral testimony of PW1 on the side of the petitioners and RW1 on the side of the respondents, Exts.A1 to A9 were marked on the side of the appellants/claimants and Exts.B1 and B2 were marked on the ``` MACA NO. 822 OF 2019 ``` 4 side of the respondents. The tribunal, after analysing the pleadings and materials on record, awarded a sum of 9,31,250/as compensation under different heads, with interest @ 6.5% per annum from the date of petition till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer. 5. The learned counsel for the appellant claims enhancement mainly under the following heads: **- Income/notional income :** The learned counsel for the appellants submitted that the deceased was a loading worker and was earning Rs.15,000/- per month. On a perusal of the tribunal award, it is seen that no evidence was adduced to prove the monthly income of the deceased. However the learned counsel submitted that, going by the judgment in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Limited** [AIR 2011 SC 2951], the notional income ought to have been taken at the rate of Rs.8,000/- per month. Following the ``` MACA NO. 822 OF 2019 ``` 5 judgment in **Ramachandrappa** (supra), I fix the monthly notional income of the deceased at Rs.8,000/- per month. ## **Compensation for pecuniary loss caused due to the** **- death of the deceased :** The learned counsel for the appellants submitted that there were four legal heirs, namely mother, wife and two children but the tribunal has deducted 1/3[rd] instead of 1/4[th] . Since, there are 4 legal heirs, the deduction to be applied is 1/4[th] . Further, while awarding compensation under the said head, 25% future prospects is to be added to the notional income of Rs. 8,000/- fixed by this court, considering the fact that the deceased was aged 44 years at the time of death. Thus, the total compensation payable under the said head is recalculated thus:Rs.12,60,000/- (10,000x12x14x3/4). The tribunal has already awarded Rs.8,40,000/-. There will be an additional amount of **Rs.4,20,000/-** under the afore head. **- Loss of consortium:** Though there are four legal heirs, only Rs.40,000/- was awarded by the tribunal towards the said head. Going by the judgment in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , I am of the opinion that total compensation payable under the head ought to ``` MACA NO. 822 OF 2019 ``` 6 have been Rs.1,60,000/-. Thus, I award an additional amount of **Rs.1,20,000/-** under the said head. **- Pain and sufering :** It is submitted by the learned counsel for the appellant that the deceased succumbed to death after hospitalization for 25 days, but no amount was awarded towards pain and suffering. It is true that it may not be proper for the court to award compensation for pain and suffering. But, in the case on hand, it is seen that almost 25 days of hospitalization was undergone by the deceased, i.e. from 19.04.2011 to 14.05.2011. The learned counsel relied on by the judgment of this Court in **Mable and others v. Lenoy Sebastian and others [LLR 2024(1) Kerala 958],** wherein this court has found that the legal heirs are entitled to compensation under the head pain and suffering, even though the injured person died at a later point in time. On the other hand, the learned standing counsel relied on the judgment of the Division Bench of this Court in **Jyni and others v. Raphael P.T and Others** [2016(2) KHC 870], wherein the Division Bench of this Court has held that in a normal case, Rs.15,000/- can be awarded towards pain and sufferings even though the injured succumbed to death at a later stage. ``` MACA NO. 822 OF 2019 ``` 7 Considering the facts of the case, I am of the opinion that an amount of **Rs.15,000/-** can be granted towards the said head. **Medical expenses :-** It is further submitted by the learned counsel for the appellants that though a total amount of Rs.50,000/- was claimed under the head medical expenses and bystander expenses, the tribunal has awarded only an amount of Rs.5,000/- towards medical expenses and Rs. 6,250/- towards Bystander expenses for 25 days. It is true that the appellants did not produce any bills to prove the medical expenses. Considering the fact that the hospitalization was for 25 days, I am of the opinion that an additional amount of Rs.10,000/- can be granted under the said head. 6. The appellants have also sought enhancement under the other heads. On a perusal of the award passed by the tribunal, I am of the opinion that the compensation paid under the other heads is just and reasonable. Therefore, I am not inclined to interfere with the tribunal's award under the other heads. 7. Thus, the impugned award of the tribunal is modified as follows :- 8 ## **`MACA NO. 822 OF 2019`** |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**claimed**|**Amount**<br>**awarded by**<br>**the**<br>**tribunal**|**Modifed**<br>**in appeal**|**Total**<br>**compensation**| |---|---|---|---|---|---| |1|Transport to<br>hospital|25,000|10,000|(not<br>modifed)|10,000| |2|**Medical**<br>and<br>bystander<br>expenses|**50,000**|**5,000**<br>6,250|**5,000**<br>(not<br>modifed)|**10,000**<br>6,250| |3|Funeral expense|30,000|15,000|(not<br>modifed)|15,000| |**4**|**Compensation**<br>**for pain and**<br>**sufering**|**20,000**|**Nil**|**15,000**|**15,000**| |5|Compensation<br>for loss of love<br>and afection|30,000|Nil|Nil|Nil| |6|Compensation<br>for loss of estate|20,000|15,000|(not<br>modifed)|15,000| |**7**|**Compensation**<br>**for loss of**<br>**consortium**|**1,00,000**|**40,000**|**1,20,000**|**1,60,000**| |**8**|**Compensation**<br>**for pecuniary**<br>**loss caused**<br>**due to the**<br>**death of the**<br>**deceased**|**12,25,000**|**8,40,000**|**4,20,000**|**12,60,000**| ||**TOTAL**|**15,00,000**|**9,31,250**|**5,60,000**|**14,91,250**| Accordingly, the appeal is allowed and the appellant/claimant is awarded an additional compensation of **Rs.5,60,000/-** (Rupees five lakhs sixty thousand only) over and above the compensation awarded by the tribunal with interest @ 6.5% per annum from the date of petition till realization and proportionate costs. On payment of the amount by the insurance ``` MACA NO. 822 OF 2019 ``` 9 company, it shall be entitled to recover the same amount to the respondents 1 and 2. The respondent insurer shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The claimant shall furnish copies of the PAN Card, ADHAAR Card and bank details before the respondent insurer within a period of one month so as to enable the insurance company to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the insurance company to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the appellant at the earliest in accordance with law. **Sd/-** **SHOBA ANNAMMA EAPEN JUDGE** ## **SMA**