Kerala High Court
New India Assurance Company Ltd vs New India Assurance Company Ltd on 17 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
MACA.No.1288 OF 2012
AGAINST THE AWARD IN OPMV 892/2007 DATED 09-12-2011 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA
APPELLANT/RESPONDENT NO.3:
NEW INDIA ASSURANCE COMPANY LTD
PALACE ROAD, THRISSUR, REP. BY ITS MANAGER.
BY ADV. SRI.LAL K.JOSEPH
RESPONDENTS/PETITIONERS 1 TO 3 AND RESPONDENTS 1 T,2,4 & 5:
1 OMANA SASIRAM
W/O. SASIRAM, KOOPLIKKATTIL HOUSE, OMATHUNGAL,
MATTATHOOR P.O., MUKUNDAPURAM TALUK, PIN-680 684.
2 RAMKIRAN
S/O. SASIRAM, KOOPLIKKATTIL HOUSE, OMATHUNGHAL,
MATTATHOOR P.O., MUKUNDAPURAM TALUK, PIN-680 684.
3 ANJU S.
D/O. SASIRAM, KOOPLIKKATTIL HOUSE, OMATHUNGHAL,
MATTATHOOR P.O., MUKUNDAPURAM TALUK, PIN-680 684.
4 MERCY JOHN
W/O. JOHNY, MOYLAN HOUSE,
CHENNGALOOR DESOM P.O., VETTUKAD, MUPLIYAM VILLAGE,
MUKUNDAPURAM TALUK, PIN-690 312.
5 DINESAN E.K.
S/O. KUMARAN, ELANTHOLY HOUSE, VELLARPADAM, VETTUKAD,
MUPLIYAM VILLAGE, MUKUNDAPURAM TALUK, PIN-690 312.
6 VARGHESE C.P.
S/O. POULOSE, CHERANGADAN HOUSE, MATTATHUR P.O.,
MONNUMURI, THRISSUR DISTRICT, PIN-680 684.
7 THE MANAGER
UNITED INDIA INSURANCE COMPANY LTD., ROUND NORTH,
THRISSUR.
MACA.Nos.1288 OF 2012 & 1812/2012
2
R1 BY ADV. SRI.I.J.AUGUSTINE
R1 BY ADV. SRI.BENOJ C AUGUSTIN
R1 BY ADV. SMT.J.KASTHURI
R1 BY ADV. SRI.P.K.MANOJKUMAR
R1 BY ADV. SRI.NAGARAJ NARAYANAN
R1 BY ADV. SRI.PRATHAP PILLAI
R1 BY ADV. SRI.SAIJO HASSAN
R1 BY ADV. SRI.SEBIN THOMAS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.03.2021, ALONG WITH MACA.1812/2012(B), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.Nos.1288 OF 2012 & 1812/2012
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
MACA.No.1812 OF 2012
AGAINST THE AWARD IN OPMV 892/2007 DATED 09-12-2011 OF SPECIAL
COURT FOR EC ACT CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR
APPELLANTS/PETITIONERS:
1 OMANA SASIRAM
AGED 51, W/O.LATE SASIRAM, KOOPLIKKATTIL
HOUSE,OMPUTHINGAL, MATTATHUR P.O., MUKUNDAPURAM
TALUK,THRISSUR DISTRICT.
2 RAMKIRAN AGED 23 SO.SASIRAM KOOPLIKKATTIL HOUSE
OMPUTHINGAL, MATTATHUR P.O., MUKUNDAPURAM
TALUK,THRISSUR DISTRICT.
3 ANJU.S. AGED 19 SO.LATE SASIRAM KOOPLIKKATTIL HOUSE
OMPUTHINGAL, MATTATHUR P.O., MUKUNDAPURAM
TALUK,THRISSUR DISTRICT.
BY ADVS.
SRI.NAGARAJ NARAYANAN
SMT.J.KASTHURI
SRI.BENOJ C AUGUSTIN
SRI.PRATHAP PILLAI
SRI.SEBIN THOMAS
SRI.I.J.AUGUSTINE
SRI.SAIJO HASSAN
SRI.SWATHY DAS
RESPONDENTS/RESPONDENTS:
1 MERCY JOHNY
W/O.JOHNY, MOYLAN HOUSE, CHENGALOOR DESOM P.O.,
THRISSUR DISTRICT 680 312.
2 DINESAN E.K. SO.KUMARAN ELANTHOLY HOUSE
VELLARAPADAM
VETTUKAD, MUPLIYAM VILLAGE, MUKUNDAPURAM TALUK
MACA.Nos.1288 OF 2012 & 1812/2012
4
680312.
3 THE MANAGER NEW INDIA INSURANCE CO.LTD. PALACE ROAD
THRISSUR 680001.
4 VARGHESE C.P. SO.POULOSE CHERANGADAN HOUSE
MATTATHUR P.O.
MOONNUMURI, THRISSUR DISTRICT 680 692.
5 THE MANAGER UNITED INDIA INSURANCE CO.LTD. ROUND
NORTH
THRISSUR - 680001.
R1, R5 BY ADV. SRI.P.K.MANOJKUMAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.03.2021, ALONG WITH MACA.1288/2012, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
MACA.Nos.1288 OF 2012 & 1812/2012
5
P.V.KUNHIKRISHNAN, J.
--------------------------------
MACA.Nos.1288 / 2012 & 1812/2012
-------------------------------
Dated this the 17th day of March, 2021
JUDGMENT
These two appeals are filed against the award dated
9.12.2012 in O.P.(MV) No.892/2007 on the file of the Motor
Accidents Claims Tribunal, Irinjalakuda by the third respondent
and petitioners in the above claim petitions. It is a claim petition
filed under Section 166 of the Motor Vehicles ACT. The claim
petition was filed by Sasidharan alias Sasi Ram for compensation
for the injury sustained to him in a motor vehicle accident.
Pending the claim petition, he died and his legal heirs were
impleaded as additional petitioners No.2 to 4. As per Ext.A21
postmortem certificate, it is found that the deceased/first
petitioner died due to the complications subsequent to the
injuries sustained to him. The finding in the postmortem report
is like this: "The deceased died due to hypostatic pneumonia
due to prolonged immobilization due to the head injury
sustained."
MACA.Nos.1288 OF 2012 & 1812/2012
2. The short facts are like this: on 19.1.2007 at 2.30 p.m.,
while the deceased was riding a motor cycle bearing registration
No.KL-45-6894 along with his friend through Pudukad-Mupliyam
public road from west to east and when they reached at Santhi
Nagar, a tipper lorry bearing Reg.No.KL-8/AK 2920 driven by the
second respondent in a rash and negligent manner came from
east to west and hit the motorcycle driven by the deceased
causing serious injuries to the deceased. He was immediately
taken to Elite Hospital Koorkenchery and thereafter he was
admitted in different hospitals. Subsequently, he succumbed to
the injuries on 29.12.2010.
3. To substantiate the case, the claimants produced Exts.
A1 to A21. PW1 to PW3 were examined on the side of the
claimants. After going through the evidence and the documents,
the Tribunal found that the appellants are entitled an amount of
Rs.9,97,309/- with interest at the rate of 7.5% from the date of
petition till realisation. Aggrieved by the quantum of
compensation, the claimants filed M.A.C.A.1812/2012. The third
respondent Insurance Company filed M.A.C.A.No.1288/2012.
MACA.Nos.1288 OF 2012 & 1812/2012
4. Heard the counsel for the appellants and the counsel
for the fifth respondent who is the Manager, United India
Insurance Company.
5. The counsel for the appellant in M.A.C.A.1288/2012
submitted that since the case is treated as a death case, the
Tribunal erred in granting compensation for loss of earning and
permanent disability because the Tribunal already awarded
compensation for loss of dependency. The counsel submitted
that the compensation awarded in the other heads is on a higher
side. The counsel for the appellants/claimants submitted that the
quantum of compensation awarded by the Tribunal is too low
considering the loss sustained by the claimants. I will first
consider M.A.C.A.1288/2012.
M.A.C.A.1288/2012.
6. As far as the argument of the appellant about the
granting compensation for loss of earning, I think, the Tribunal is
justified in granting the same because the accident was
happened on 19.1.2007 and the original first petitioner died only
MACA.Nos.1288 OF 2012 & 1812/2012
on 29.12.2010. In the claim petition, the loss of earning claimed
by the deceased was from 19.1.2007 to 20.1.2008. The Tribunal
awarded only an amount of Rs.48,000/-. In the facts and
circumstances of the case, according to me no interference is
necessary to the amount awarded for loss of earning.
7. Then the counsel submitted that the amount awarded
for permanent disability will not stand in the light of the fact that
there is compensation for loss of dependency. The submission of
the counsel is that the loss of dependency includes the
permanent disability. There is some force in the argument of the
counsel for the appellant. Therefore the compensation amount
awarded for permanent disability is to be set aside. No
interference is necessary as far as the compensation amount
awarded by the Tribunal for all other heads in an appeal filed by
the Insurance Company.
M.A.C.A.1812/2012.
8. In this case, the counsel for the appellant submitted
that the deceased was working as a Sub Contractor, at Chennai
MACA.Nos.1288 OF 2012 & 1812/2012
Port-Trust. The counsel submitted that Ext.A17 is the salary
certificate issued by the employer of the deceased who is
examined as PW2. PW2 deposed that the deceased was getting
an amount of Rs.15,000/- per month. The Tribunal fixed the
monthly income as Rs.4,000/-. The Tribunal rejected the
evidence of PW2. According to me, even a coolie will get more
than Rs.4,000/- per month. Therefore considering the fact that
the accident happened in 2007 and also taking the dictum laid
down by the Apex Court in Ramachandrappa V. Manager, Royal
Sundaram Alliance Insurance Co., Ltd.(2011 (13) SCC 236), the
monthly income of the appellant can be safely fixed as
Rs.5,500/-. 10% increase is to be given to it towards future
prospects. Then the monthly income of the deceased can be
safely fixed as Rs.6,050/-. If that is the case, the loss of
dependency is to be re-assessed in the following manner:
Rs.6050x12x11x2/3= Rs.5,32,400/-.
9. From the above amount, an amount of Rs.3,52,000/- is
to be deducted which is the amount awarded by the Tribunal for
MACA.Nos.1288 OF 2012 & 1812/2012
loss of dependency. Then the balance amount will be
Rs.1,80,400/-. Then the counsel submitted that only an amount
of Rs.10,000/- is awarded for loss of estate. I think the
appellants are entitled another amount of Rs.5,000/- in that
head. Similarly, no amount is awarded towards funeral
expenses. The appellants are entitled an amount of Rs.15,000/-
towards funeral expenses. The appellants are the wife and
children of the deceased. Therefore, they are entitled consortium
at the rate of Rs.40,000/- each. If that is the case, the
appellants are entitled an amount of Rs.1,20,000/- towards loss
of consortium. From the above amount, Rs.10,000/- each
awarded by the Tribunal for loss of consortium and loss of love
and affection are to be deducted. Then the balance amount
entitled for loss of consortium will be Rs.1,00,000/-. Then the
counsel submitted that the deceased died after three years of the
accident and only an amount of Rs.25,000/- is awarded towards
pain and suffering when the claim was Rs.50,000/-. I think the
appellant is entitled the entire amount of Rs.50,000/- towards
pain and suffering because he suffered about three years.
MACA.Nos.1288 OF 2012 & 1812/2012
Therefore, the appellant is entitled an enhanced amount of
Rs.25,000/- towards pain and sufferings.
10. Towards bye-stander's expenses the Tribunal awarded
only Rs.20,000/-. The claim is Rs.48,000/-. Admittedly, the
deceased died after three years from the date of accident.
Considering the entire facts and circumstances of the case, I
think, the appellants are entitled the entire amount claimed for
bye-stander's expenses. Hence, the appellants are entitled
another amount of Rs.28,000/- towards bye-stander's expenses.
Therefore, the enhanced amount entitled by the appellants can
be summarised like this.
1. loss of dependency - Rs.1,80,400/-
2. Loss of estate - Rs.5,000/-
3. Funeral expenses - Rs.15,000/-
4. Loss of consortium - Rs.1,00,000/-
5. Pain and sufferings - Rs.25,000/-
6. Bye-stander's expenses- Rs.28,000/-
Total - Rs.3,53,400/-
MACA.Nos.1288 OF 2012 & 1812/2012
11. Since I found that the appellants are not entitled
compensation for permanent disability, an amount of
Rs.1,53,600/- is to be deducted from the above amount. Thus
the enhanced compensation amount entitled by the appellants is
Rs.3,53,400- Rs.1,53,600/- = Rs.1,99,800/-.
In the result, these appeals are disposed of in the following
manner: M.A.C.A. No.1288/2012 is allowed in part. The
compensation awarded for permanent disability is set aside.
M.A.C.A.1812/2012 is allowed in part. The impugned award is
modified. The appellants are entitled an amount of Rs.1,99, 800/-
with interest at the rate of 7.5% per annum from the date of
application till realisation. The appellant in M.A.C.A.1288/2012
will pay the enhanced amount with interest.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
Al/-
