The New India Assurance Company ... vs Santhosh Kumar C.K
2021 Latest Caselaw 13720 Ker

MACA No.2987 of 2015                    1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                           MACA NO. 2987 OF 2015
   AGAINST THE AWARD IN OP(MV) No.632/2011 DATED 1-6-2015 OF THE
              ADDITIONAL M.A.C.T JUDGE-IV, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:

             THE NEW INDIA ASSURANCE COMPANY LIMITED
             PATHANAMTHITTA, NOW REPRESENTED BY ITS MANAGER,
             REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

             BY ADVS.
             SRI.MATHEWS JACOB (SR.)
             SRI.P.JACOB MATHEW



RESPONDENT/CLAIMANTS:

     1       SANTHOSH KUMAR C.K
             SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM-
             688 320.

     2       LEENA RANI G.
             SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM-
             688 320.

     3       SREECHAND S.
             SASTHA VILAS, PERINGALA P.O., NADAKAVU, KAYAMKULAM-
             688 320.

             BY ADVS.
             SMT.ANNIE M.ABRAHAM
             SRI.T.K.BIJU MANJINIKARA




      THIS   MOTOR     ACCIDENTS   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA No.2987 of 2015                        2




                                     JUDGMENT

This is an appeal filed by the Insurance Company

challenging the award passed by the Additional Motor

Accidents Claims Tribunal-IV, Pathanamthitta in OP(MV)No.632

of 2011 dated 1-6-2015. (The parties are referred to in this

judgment according to their status in the claim petition)

2. The claim petition is filed by the respondents in

the appeal seeking compensation for the death of one

Sreechind S, due to the injuries sustained to him in a motor

accident occurred on 3.12.2010. The accident occurred when

the scooter ridden by the deceased was hit by a KSRTC bus

insured with the 3rd respondent. The deceased was

an Engineering student and was aged 20 at the time of

the accident. The compensation sought for by the respondents/

claimants was Rs.13 lakhs.

3. The respondent No.1 in the claim petition filed a

written statement disputing the negligence on the part of the

driver of the KSRTC bus. According to the 1 st respondent,

accident occurred due to the rash and negligent driving of

the deceased himself. The 2nd respondent also filed a written

statement raising similar contentions by attributing the

negligence on the deceased himself.

4. The appellant/3rd respondent filed a written statement

admitting the coverage of policy but disputed the liability

on various grounds. The quantum of compensation was also

seriously disputed by them. The said claim petition was tried

along with OP(MV)No.59 of 2012 which was filed by the pillion

rider of the motor cycle, which the deceased was riding,

seeking compensation for the injuries sustained to him.

5. The evidence in this case consists of Exts.A1 to A10

from the side of the claim petitioners. No evidence was

adduced from the side of respondents. After the trial, both

the above claim petitions were allowed by the Tribunal

holding that the accident occurred due to the rash and

negligent driving of the 2nd respondent in the claim petition

and accordingly, being the insurer of the vehicle, the

appellant/3rd respondent was directed to deposit the

compensation. The quantum of compensation awarded in

OP(MV)No.632 of 201 was fixed as Rs.46,17,000/-. This appeal

is filed by the Insurance Company being aggrieved by the

quantification of compensation.

6. Heard the learned Senior Counsel Sri. Mathews Jacob

who is appearing for the appellant-Insurance Company and also

Sri.T.K.Biju, the learned counsel for the respondents.

7. The first submission made by the learned Senior

Counsel is that, the monthly income taken by the Tribunal is

Rs.20,000/- which is extremely on a higher side. The deceased

was only a student without any income and merely because of

the reason that he was pursuing his engineering studies, the

monthly income at such a higher rate should not have been

fixed. On the other hand, the learned counsel for the

respondents opposes the said contention by relying upon the

judgments in National Insurance Company Ltd.,Chennai v.

Fathimath Zuhara @ Zuhra Razak (2016(3) KLT 459),

Ramakrishnapillai K. and Others v. New India Assurance

Co.Ltd.(2015(3)KLJ 750) and Joginder Singh & Another v. ICICI

Lombard General Insurance Company (AIR 2019 SC 3814).

8. In Joginder Singh(supra), the Honourable Supreme

Court,fixed the monthly income of the deceased therein, who

was student of Airhostess Training program in Frankfinn

Institute, Chandigarh, as Rs.15,000/-. This was in respect of

an accident occurred in the year, 2009. However, it is

evident from the reading of the said judgment that, the

monthly income of the deceased was not at all an issue within

the consideration of the Hon'ble Supreme Court. On other

hand, in that case, the Tribunal itself has taken the monthly

income as Rs.15,000/- and this was not apparently challenged

by the Insurance Company in the appeal before the Hon'ble

Supreme Court. The issues which were raised and considered by

Hon'ble Supreme Court were something else and not in

connection with the monthly income of the deceased. Another

judgment relied upon by the learned counsel for the

respondents is that of Ramakrishnapillai K.(supra). In the

said judgment, a B.Tech 4th semester student was died in an

accident occurred on 10.3.2006. After referring to various

judgments including that of a Division Bench of High Court of

Andra Pradesh (2011 ACJ 1702), this Court has fixed the

monthly income as Rs.12,000/-. Yet another decision is

reported in National Insurance Company Ltd.,Chennai v.

Fathimath Zuhara @ Zuhra Razak (2016(3) KLT 459), wherein the

Division Bench of this Court taken the monthly income of an

engineering student as Rs.12,000/- in respect of an accident

occurred on 10.9.2005. In this case, the Tribunal relied upon

a judgment rendered by the High Court of Madras in Managing

Director, Metropolitan Transport Corporation v. S. Mariam

Beeve and Another (2014 ACJ 2693) wherein in respect of an

MBBS student, the monthly income was fixed as Rs.12,000/-.

When considering all the above judgments, this Court is of

the view that when there are judgments rendered by Division

Bench of this Court fixing the monthly income of an

engineering student at a particular rate that has to be

accepted. However, in the above judgments of this Court, the

accident occurred in the year 2005 and 2006. In this case,

the accident ocured in the year 2010. Therefore, considering

the date of accident and also taking into account the

increased prospects of job opportunities for engineering

graduates and also in the probable increase in monthly income

by passage of time, some addition has to be made, from the

monthly income taken by this court in the above cited

judgments. While taking those facts into consideration, this

Court is of the view that Rs.16,000/- would be a reasonable

figure to be determined as monthly income of the deceased,

instead of Rs 20,000/- fixed by the Tribunal.

9. Another contention put forward by the learned Senior

Counsel for the Insurance Company is that even though it is a

well settled position of law that while calculating the

compensation for the death of a bachelor, towards personal

expenses of the deceased, 50% of the income should be

deducted. But the deduction made by the Tribunal in this case

is only 1/3. As per the principles laid down by the Hon'ble

Supreme Court in various judgments including the decision in

National Insurance Company Ltd. v. Pranay Sethi [2017(4)KLT

662], the proper deduction to be made in a case of bachelor

should be 50% and therefore, the amount awarded is to be

modified on that ground also. Similarly, the learned Senior

Counsel further points out that, an addition of 50% towards

future prospects made by the Tribunal in the income is also

against the settled position of law. This submission is also

to be accepted, in the light of the settled principles in

Pranay Sethi's case(supra). As per the said decision, the

permissible addition on this ground is only 40%.

10. Similarly, it can be seen that Rs.1,50,000 has been

granted towards loss of love and affection. Going by the

principles laid down by the Hon'ble Supreme Court in United

India Insurance Company Vs. Satinder Kaur @ Satwinder Kaur

and others {2020(3) KHC 760), parents are entitled to filial

consortium at the rate of Rs 40,000/- each, for the loss of

their son/daughter. It is also held in the said decision that

when the compensation under the head of loss of consortium is

awarded, no further compensation is to be awarded under the

head of loss of love and affection. Therefore, the actual

compensation to be awarded to the claimants 1 and 2 is

Rs.40,000/- each for loss of filial consortium. However, as

the 3rd claimant, who is the brother of the deceased, is not

entitled for compensation under the head of loss of

consortium, he can be granted compensation for loss of love

and affection. As per the decision of Satwinder Kaur (supra),

the restriction in granting compensation for loss of love and

affection is only when an amount is awarded for loss of

consortium. In this case, as no amount is awarded to the 3rd

claimant under the said head, he can be granted compensation

for loss of love and affection. This is particularly so, as

the loss sustained to a sibling due to accident, is also a

matter to be taken into consideration while adjudicating

quantum of compensation. Regarding the amount to be granted

to the 3rd claimant, the brother of the deceased, under the

head of loss of love and affection, this Court is of the view

that, Rs.40,000/- would be reasonable. Therefore, the amount

of Rs.1,50,000/- granted under the head of loss of love and

affection is revised as Rs.1,20,000 (Rs.40,000x3) by treating

it as the compensation for consortium to parents and love and

affection to the brother.

11. While reworking the compensation in the light of the

above findings, the compensation for loss of dependency,

would come to Rs.24,19,200/- (Rs.(16,000+6400)x12x18x1/2)

instead of Rs.43,20,000/-. An amount of Rs.1,00,000/- is seen

granted under the head of loss of estate. The amount payable

under this head is Rs.15,000/-going by the principles laid

down in Pranay Sethi's case (supra). Therefore, an amount of

Rs.85,000/- has to be deducted. An amount of Rs.25,000/- is

seen granted by the Tribunal towards funeral expenses. The

actual amount payable under this head is Rs.15,000/- and

therefore the excess amount of Rs.10,000/- granted by the

Tribunal under this head has to be deducted.

In the above circumstances, the compensation receivable

by the claimants is re-fixed as Rs.26,01,200/-(Rupees

Twentysix Lakhs One thousand and Two hundred

only(24,19,200+20,000+25,000+1000+1000+40,000+15000+ 80,000 )

instead of Rs.46,17,000/-. The said amount shall be deposited

by the appellant/Insurance Company along with interest at 9%

per annum from the date of receipt of copy of this judgment.

The appeal is disposed of as above.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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