Beena vs The Divisional Manager
2021 Latest Caselaw 8021 Ker

M.A.C.A.No.971/2015                  1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

    TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

                        MACA.No.971 OF 2015(B)

  AGAINST THE AWARD IN OPMV 1841/2011 DATED 11-08-2014 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL, KOLLAM

APPELLANT/S:

       1        BEENA,
                W/O.LATE ASHOKAN, AGED 34 YEARS,
                KOLLARE VADAKKATHIL, MUZHANGODI,
                THODIYOOR VILLAGE, KALLELIBHAGOM.

       2        ANANTHU,
                S/O.LATE ASHOKAN, AGED 14 YEARS,
                KOLLARE VADAKKATHIL, MUZHANGODI,
                THODIYOOR VILLAGE, KALLELIBHAGOM
                MINOR REPRESENTED BY IST APPELLANT MOTHER)

       3        AJITHA,
                D/O.LATE ASHOKAN, AGED 12 YEARS,
                KOLLARE VADAKKATHIL, MUZHANGODI,THODIYOOR VILLAGE,
                KALLELIBHAGOM
                MINOR REPRESENTED BY IST APPELLANT MOTHER

       4        SANTHA.K,
                M/O.LATE ASHOKAN, AGED 58 YEARS,
                KOLLARE VADAKKATHIL, MUZHANGODI,T HODIYOOR VILLAGE,
                KALLELIBHAGOM.

                BY ADVS.
                SRI.PRATHEESH.P
                SMT.NIMA JACOB
                SMT.S.SEETHA
RESPONDENT/S:

                THE DIVISIONAL MANAGER,
                M/S.ORIENTAL INSURANCE CO.LTD., KOLLAM 691 001.

                R1 BY ADV. SRI.VPK.PANICKER

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
     ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
     FOLLOWING:
 M.A.C.A.No.971/2015                 2




                                JUDGMENT

Dated this the 9th day of March, 2021

Appellants are the petitioners in O.P.(MV).No.1841 of

2011 of Motor Accident Claims Tribunal, Kollam. This

appeal is filed by the petitioners seeking enhancement of

compensation. The claim petition was filed by them, seeking

compensation for the death of one Ashokan due to the

injuries sustained in a motor accident occurred on

21.07.2011. The accident occurred when the motor cycle on

which the deceased was pillion riding was hit by a tempo

trax vehicle, bearing registration No.KL-5G 9397. According

to the appellants, the deceased was a mason, employed at

Muscat and was earning a monthly income of Rs.20,000/-.

He was aged 35 years at the time of accident. The total

compensation claimed by the appellants/petitioners was

Rs.10,00,000/-.

2. The respondent insurance company appeared and

filed a written statement, admitting the coverage of policy;

but disputed the liability on various grounds. The quantum

of compensation was also seriously disputed.

3. The evidence in this case consists of Exts.A1 to

A12. No oral evidence was adduced by either side.

4. After the trial, the Tribunal was pleased to pass an

award allowing a total compensation of Rs.10,43,000/- and

being the insurer, the respondent was directed to deposit the

said amount along with interest at the rate of 9% per annum.

5. Heard the learned counsel for the appellants and

the learned counsel for the respondent insurance company.

6. The main contention raised by the learned counsel

for the appellants is that the monthly income taken by the

Tribunal was just Rs.6,000/-, which is on lower side. It was

also contended that no addition was made towards future

prospects while computing the compensation for loss of

dependency.

7. It is evident from the records that, the deceased

was working in Muscat. But, there is no proper evidence as

to the monthly income earned by him. However, taking in to

account the fact that he was employed abroad and was

stated to be a mason, the monthly income of the deceased

can be reasonably fixed as Rs.9,000/- for the purpose of

computing the compensation. Apart from the above, it is

seen from the records that, no addition was made by the

Tribunal towards future prospects. In the light of the

principles laid down by the Hon'ble Supreme Court in

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

KLT 662], an addition at certain percentage in income of

the deceased has to be made towards future prospects. In

this case, the deceased was a person aged below 40 years

and hence going by the principles laid down in the said

judgment, 40% of the monthly income can be added towards

future prospects. The deduction towards personal expenses

made by the Tribunal was ¼th. Considering the facts and

circumstances of the case, the said criteria can be retained.

8. In the above circumstances, the amount payable

under the head of loss of dependency is re-determined as

17,01,000/-[12,600x12x15x3/4]. The amount already

awarded by the Tribunal is Rs.8,10,000/- under this head

and after deducting the said amount, remaining amount

receivable by the appellants shall be Rs.8,91,000/-. Under

the head of compensation for pain and suffering, no amount

is seen awarded. In the facts and circumstances of the case,

an amount of Rs.10,000/- can be awarded as compensation

under this head. Under the head funeral expenses, an

amount of Rs.25,000/- is awarded, which is in excess by

Rs.10,000/- in the light of principles laid down by the

Hon'ble Supreme Court in Pranay Sathi's case. However,

it is seen that, amount awarded under the head of loss of

estate is Rs.5,000/-only. Going by the principles in Pranay

Sethi's case, the amount to be awarded under this head is

Rs.15,000/- and therefore, the said amount is lesser by

Rs.10,000/-. As the excess amount awarded under the head

of funeral expenses can be adjusted against the lessor

amount awarded under the head of compensation for loss of

estate, amounts under both the heads need not be interfered

with. Apart from the above, Rs.1,00,000/- is granted under

the head of compensation for loss of consortium and a

further sum of Rs.1,00,000/- under the head of loss of care

and guidance to the minor children. Going by the principles

laid down by the Hon'ble Supreme Court in National

Insurance Company v. Somwati [(2020) 9 SCC 644] and

Magma General Insurance Co.Ltd. v. Nanu Ram alias

Churu Ram [(2018) 18 SCC 130], all the appellants are

entitled for compensation at the rate of Rs.40,000/- each

under the head of loss of consortium. No compensation

under the head of loss of care and guidance to the minor

children is not warranted. Thus a total compensation

receivable under the head of loss of consortium shall be

Rs.1,60,000/-. In the light of the above principle, the total

amount of Rs.2,00,000/- granted under the head of

compensation for loss of consortium and compensation for

loss of care and guidance to the minor children are to be re-

fixed as Rs.1,60,000/-, which is to be granted under the head

of loss of consortium. Thus an amount of Rs.40,000/- has to

be deducted from the compensation awarded. In the light of

the above, the total compensation to be receivable by the

appellants in addition to the amount already awarded by the

Tribunal is fixed as Rs.8,61,000/- (891000+10000-40000).

9. Thus the additional amount payable shall be

Rs.8,61,000/-. The respondent herein is directed to deposit

an amount of Rs.8,61,000/- along with interest as fixed by

the Tribunal from the date of petition till realization, within a

period of three months from the date of receipt of a copy of

this judgment. Other directions in the award are hereby

confirmed.

The appeal is allowed to the extent above mentioned.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG