Kerala High Court

Shriram General Insurance ... vs T.T.Mariyamma on 2 July, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE BADHARUDEEN A.
       FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                         MACA NO. 951 OF 2015
   AGAINST THE AWARD DATED 07.05.2014 IN OPMV 939/2010 OF MOTOR
     ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:

             SHRIRAM GENERAL INSURANCE COMPANY LTD
             HEAD OFFICE, 10003 E 8 RIICO INDUSTRIAL AREA,
             SITAPURA, JAIPUR, RAJASTHAN,
             REPRESENTED BY ITS LEGAL OFFICER,
             AUTHORISED SIGNATORY.

             BY ADV SRI.RAJAN P.KALIYATH



RESPONDENTS/CLAIMANTS:

             T.T.MARIYAMMA
             AGED 53 YEARS
             W/O. MATHUKUTTY T.M., THENUMTHARA,
             MALAYIL HOUSE, POOMALA POST,
             PENNUKARA, CHENGANOOR, PIN 689121

             BY ADV SRI.A.N.SANTHOSH


     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 951 OF 2015

                                    2

                     A.BADHARUDEEN, J.
               ===========================
                  M.A.C.A.No.951 of 2015
               ===========================
           Dated this the 2nd day of July, 2021

                               JUDGMENT

The original 3rd respondent, Sriram General Insurance Co.Ltd,

who is aggrieved by the award dated 07.05.2014 in O.P.MV No.939 of

2010 of MACT, Pathanamthitta has preferred this appeal arraying the

original petitioner as the respondent herein.

Facts of the case

2. The deceased George and the original petitioner (mother of

the deceased George Mathew) sustained injuries on 29.06.2010 at

12.15 p.m. in Kayamkulam-Punalur road when the motor cycle bearing

Reg.No.KL-30/771 in which they were travelling was hit down by a

stage carrier bearing Reg.No.KL-05-U-4971 driven by first respondent

in the O.P. Respondents 2 and 3 in the O.P. respectively are the

owner and insurer of the offending stage carrier. As against the claim

of Rs.82,26,000/-, the Tribunal awarded Rs.34,42,570/- (Rupees thirty

four lakhs forty two thousand five hundred and seventy only).

3. The learned counsel for the insurance company/appellant

highlighted anomaly in the calculation made after assailing fixation of MACA NO. 951 OF 2015

income at the rate of Rs.20,000/- by the Tribunal in a case admittedly

the deceased was having no job at the time of accident. The learned

counsel submitted that though as per Ext.A19 series pay slips and the

TDS certificate issued from a construction company, the monthly

income of the deceased is shown as Rs.20,000/-, the mother of the

deceased who was examined as PW1 admitted that the deceased

resigned from the job and he had been awaiting employment abroad on

the date of accident. According to the learned counsel for the

insurance company at the time of the accident there was no

employment and the victim did not join service though as per Ext.A21

employment offer letter dated 12.05.2010 issued from a Saudi Arabian

company.

4. Though the learned counsel for the insurance company

pressed for reduction in income, the same was vehemently opposed by

the learned counsel for the original petitioner on the submission that

evidently as per Exts.A10 to 11 documents, the deceased was a

degree holder with IT certificate and experienced in computer course

and was qualified enough to get an employment for a higher income.

Further, as per the employment letter, he was offered 5,500/- Saudi

Riyals. On a perusal of the documents showing the qualification and

other materials I am not inclined to reduce the income, since the MACA NO. 951 OF 2015

income fixed by the Tribunal is reasonable. When coming to the

mistake committed by the Tribunal, in the matter of calculation, the

same appears to be convincing and this fact was fairly conceded by the

learned counsel for the original petitioner as well. The mistake pointed

out by the learned counsel for the insurance company is that the

Tribunal applied 18 as the multiplier in the case of the deceased was

aged 30. According to the learned counsel as per the decision reported

in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121],

the multiplier up to the age group up to 30 is 17. This submission

appears to be convincing and therefore, I refix the multiplier as 17

instead of 18 fixed by the Tribunal.

5. The second mistake highlighted by the learned counsel for

the insurance company is that the Tribunal had given 50% addition to

the monthly income of the deceased though the addition should be

limited to 40% in case of the deceased who comes under the category

of persons with fixed salary as per the ratio settled in the decision

reported in National Insurance Company Limited v. Pranay Sethi

and Ors. [(2017) 16 SCC 680]. Going by the submission, in fact, the

Tribunal had given 50% addition following the ratio in Sarla Verma

(supra). However, the addition was reduced to 40% as per the ratio

settled in Pranay Sethi (supra). Anyhow the contention of the learned MACA NO. 951 OF 2015

counsel for the insurance company is sustainable. Therefore, loss of

dependency income calculated by the Tribunal required to be interfered

by rectifying the mistake pointed out. Therefore, loss of dependency

income is recalculated as:

28,000 x 12 x 1/2= 1,68,000 x17= Rs.28,56,000/-.

So the compensation granted by the Tribunal under the head loss of

dependency is reduced to this amount. It is submitted by the learned

counsel for the insurance company that as against the settled law in

Pranay Sethi (supra) the Tribunal granted funeral expenses as

Rs.25,000/- as against Rs.15,000/-. In fact, this argument is also fairly

conceded by the learned counsel for the original petitioner. In view of

the matter, Rs.10,000/- is deducted under this head. Similarly towards

loss of love and affection also, the Tribunal granted Rs.80,000/- as

against Rs.40,000/-, under the head loss of love and affection settled

by law. Since loss of love and affection is not permitted in cases of

death, loss of consortium would suffice. Therefore, compensation

under this head is also required to be interfered by reducing the same

as Rs.40,000/- towards loss of consortium. Loss of estate in fact

granted by the Tribunal comes to Rs.10,000/-, though the same can be

up to Rs.15,000/-. Therefore, Rs.5,000/- is increased under this head.

Thus the compensation granted by the Tribunal and this Court is as MACA NO. 951 OF 2015

shown below:

  Sl. Head of claim         Amount          Amount        Amount
  No                        awarded         modified by   reduced/enhanc
                            by       the    this Court    ed by this Court
                            Tribunal        (in rupees)   (in rupees)
                            (in rupees)
  1     Loss             of 32,40,000/-     28,56,000/-   3,84,000/-
        dependency                                        (Rupees three
                                                          lakhs      eighty
                                                          four thousand
                                                          only) (reduced)
  2     Transport        to   5,000/-       -             -
        hospital
  3.    Damage to cloths      1,000/-       -             -
  4     Medical expenses      71,570/-      -             -
  5     Funeral expense       25,000/-      15,000/-      10,000/-
                                                          (Rupees   ten
                                                          thousand only)
                                                          (reduced)
  6     Pain and sufferings 10,000/-        -             -
  7     Loss of love and 80,000/-
        affection

        Loss of consortium                  40,000/-      40,000/-
                                                          (Rupees     forty
                                                          thousand only)
                                                          (reduced)
  8     Loss of estate        10,000/-      15,000/-      5,000 (Rupees
                                                          five   thousand
                                                          only)(enhanced)
        Total                 34,42,570/-                 4,29,000/-
                                                          (Rupees      four
                                                          lakh twenty nine
                                                          thousand only)
                                                          (reduced)

6. In view of the above finding, the appeal succeeds in part.

Thereby the compensation granted by the Tribunal is reduced to the MACA NO. 951 OF 2015

tune of Rs.4,29,000/- (Rupees Four lakh and twenty nine thousand

only) and therefore the petitioner is entitled to get Rs.30,13,570/-

(Rupees thirty lakh thirteen thousand five hundred and seventy only).

7. As far as the other heads in the award are concerned, no

dispute is raised. Therefore award passed by the Tribunal on other

heads stand confirmed.

In the result, modified award passed for Rs.30,13,570/- (Rupees

thirty lakh thirty thousand five hundred and seventy) payable by

original respondents 1 to 3 jointly and severally. But the appellant/3 rd

respondent being the insurer is liable to pay the same. The award