Sobha vs Nanu
2021 Latest Caselaw 22782 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
SATURDAY, THE 20TH DAY OF NOVEMBER 2021 / 29TH KARTHIKA, 1943
                     MACA NO. 3765 OF 2018
AGAINST THE AWARD DATED 23.06.2018 PASSED IN OP(MV) 651/2015
    OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA, KOZHIKODE


APPELLANTS/PETITIONERS:

    1     SOBHA
          AGED 50 YEARS
          W/O.BALAKRISHNAN, THADATHIL HOUSE,
          KALPATHUR P.O., NOCHAD PANCHAYATH,
          KOYILANDY TALUK, KOZHIKODE DISTRICT,
          PIN - 673 524.

    2     SHEEBA
          AGED 42 YEARS
          W/O. LATE BABU, VADAKEY MAYILADAITHARAMAL HOUSE,
          JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR,
          KOYILANDY TALUK, KOZHIKODE DISTRICT,
          PIN - 673 524.

    3     ANUSREE
          AGED 20 YEARS
          D/O. LATE BABU V.M., VADAKEY MAYILADAITHARAMAL
          HOUSE, JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR,
          KOYILANDY TALUK, KOZHIKODE DISTRICT,
          PIN - 673 524.

    4     AMAL
          AGED 14 YEARS
          S/O. LATE BABU V.M., VADAKEY MAYILADAITHARAMAL
          HOUSE, JANAKIYAMUKKU, KIZHPPAYUR P.O., MEPPAYUR,
          KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673
          524.

          MINOR REPRESENTED BY THE 2ND APPELLANT MOTHER,
          SHEEBA,
          AGED 42 YEARS, W/O. LATE BABU.

          BY ADVS.

          ABU MATHEW
          SRI.AJU MATHEW
 MACA NO. 3765 OF 2018
                             2




RESPONDENTS/RESPONDENTS:

    1     NANU
          AGED 46 YEARS
          S/O. KANARAN, MELATH HOUSE, KEEZHPAYYUR P.O.,
          MEPPAYUR VIA, VATAKARA TALUK, KOZHIKODE DISTRICT,
          PIN - 673 524.

    2     TATA AIG GENERAL INSURANCE COMPANY LTD.,
          15TH FLOOR, TOWER A, PENINSULA BUSINESS PARK,
          GANPATRAO KADAM MARG, OFF SENAPATI, BAPAT MARG,
          LOWER PAREL, MUMBAI, 400 013,
          REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE.

    3     KUNHIMON @ KUNHIRAMAN,
          AGED 55 YEARS
          S/O. LATE KUNHIKANNAN NAIR, VADAKEY
          MAYILADAITHARAMAL JANAKIYAMUKKU, KIZHPPAYUR P.O.,
          MEPPAYUR,
          KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN - 673
          524.

          BY ADV

          SRI.R.AJITH KUMAR (128/84)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 3765 OF 2018
                                      3


                                JUDGMENT

This is an appeal submitted by the petitioners in O.P.(MV) No.651

of 2015 of the Motor Accidents Claim Tribunal, Vatakara. The claim

petition was submitted by them seeking compensation for the death of

one Kunhimadhavi Amma due to the injuries sustained to her in a motor

accident occurred on 18.02.2015. The accident occurred when an auto

taxi bearing Reg.No.KL-56-K-9238 owned and driven by the 1 st

respondent hit her while she was walking through the road. Consequent

to the injuries, she died on 21.02.2015 while undergoing treatment in the

hospital. The deceased was aged 66 years and working as a coolie with

a monthly income of Rs.10,000/-. The 1 st appellant is the daughter of the

deceased, the 2nd appellant is the wife of the predeceased son of the

deceased and the appellants 3 and 4 are the children of the predeceased

son of the deceased. As compensation, an amount of Rs.8 Lakhs was

sought for.

2. The 3rd respondent did not appear. The 1st respondent filed a

written statement admitting the accident but disputed the negligence. It

was also pointed out that the vehicle was covered with a valid insurance

policy and therefore, if at all any amount is found to be payable, that has MACA NO. 3765 OF 2018

to be recovered from the insurance company.

3. The 2nd respondent insurance company filed a written

statement disputing the negligence and the quantum of compensation

claimed. However, the coverage of policy was admitted by them.

4. Evidence in this case consists of oral evidence of PW1 who

is the 1st appellant and Exts.A1 to A6 were marked. No evidence was

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

passed an Award allowing a total compensation of Rs.3,56,000/- (Rupees

three lakh fifty six thousand only) and the 2 nd respondent was directed to

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

Being dissatisfied with the quantum of compensation this appeal is filed.

5. Heard Sri.Aju Mathew, learned counsel for the appellants

and Sri.R.Ajith Kumar, learned counsel for the 2nd respondent Insurance

Company.

6. Learned counsel for the appellant contends that the amount

awarded by the Tribunal is grossly inadequate, particularly under the

head of 'Loss of dependency'. On the other hand, the learned counsel

for the Insurance Company would support the findings in the award, by

pointing out that reasonable amount has been awarded by the Tribunal MACA NO. 3765 OF 2018

and no interference is warranted.

7. When we come to the question of adequacy of

compensation, the first aspect to be considered is the monthly income

fixed by the Tribunal. The amount taken by the Tribunal is Rs.6,000/-.

The year of accident being 2016, I am of the view that Rs.6,000/- as

monthly income is on lower side. Going by the principles laid down by

the Supreme Court in Syed Sadiq v. Divisional Manager, United India

Insurance Company [(2014) 2 SCC 735] and Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC

236] under no circumstance, the said amount can be lesser than

Rs.10,000/-, in respect of an accident occurred in the year 2015. In such

circumstances, I am of the view that the monthly income claimed by the

appellants, which is Rs.10,000/- can be accepted as such. At this

juncture, learned counsel for the insurance company would point out

that, the Tribunal made deduction of only ¼ towards personal expenses

while computing the compensation. According to the learned counsel

for the insurance company, none of the parties can be said to be actually

dependent upon the deceased, on account of their relationship as well as

their age factor. As regard to the first appellant who is the daughter of MACA NO. 3765 OF 2018

the deceased, it is to be noted that, she was aged 47 years and cannot be

said to be a person completely depending upon the income of the

deceased. The other appellants are the wife and children of the

predeceased son of the deceased. They also cannot be said to be a

dependent on the deceased, who was aged 66 years at the time of her

death. Even though the learned counsel for the appellant would seriously

oppose the said contention by specifically referring to the deposition of

PW1, I find some force in the contention of the learned counsel for the

insurance company. Considering the advanced age of the deceased, under

no circumstances, it can be concluded that they were completely

dependent upon the deceased for their livelihood. Of course, the

appellants will be entitled for compensation for loss of dependency even

in the absence of complete financial dependence upon the deceased, but

while considering the question of deduction towards personal expenses,

the same has some relevance. In my view, in the facts and circumstances

of the case, a deduction of 1/3 is reasonable and to that extent the finding

of the Tribunal is to be interfered. In such circumstances, with the above

revised monthly income and the revised criteria as to the deduction, the

amount receivable by the appellant under the head of 'Loss of MACA NO. 3765 OF 2018

dependency' is fixed as Rs.4 Lakhs (10000 x 12 x 5 x 2/3). The

Tribunal has already awarded an amount of Rs.2,70,000/- (Rupees two

lakhs seventy thousand only) under this head and hence the additional

amount entitled to by the appellant is Rs.1,30,000/- (Rupees one lakh

thirty thousand only).

8. The other head on which interference is warranted is 'Pain

and sufferings'. It was pointed out that the accident occurred on

18.02.2015 and she died on 21.02.2015 while undergoing treatment.

Considering this aspect, an amount of Rs.10,000/- can be reasonably

fixed as compensation for 'Pain and sufferings'. Even though the

learned counsel for the appellant pointed out that no amount is awarded

under the head 'Loss of consortium', I am not inclined to accept the

same in view of the fact that an amount of Rs.50,000/- is already

awarded under the head of loss of love and affection. Even if the

principles laid down in United India Insurance Co Ltd V. Satinder

Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760] is applied, only

the 1st appellant can be held to be entitled for compensation for 'Loss of

consortium', which is for an amount of Rs.40,000/-. It was also held in

the said judgment that no additional amount needs to be granted for MACA NO. 3765 OF 2018

'Loss of love and affection'. In the light of the aforesaid observations of

the Hon'ble Supreme Court, the actual entitlement would be only for

Rs.40,000/- but, even though in a different head, the appellants were

awarded Rs.50,000/- for 'Loss of love and affection'. In totality of facts

and circumstances of the case and also in the light of the observations

made as above, I am not interfering in the award of Rs.50,000/- under

the head of 'Loss of love and affection'. The amount of 'Loss of

consortium' can be adjusted as against the amount under the head of

'Loss of love and affection'. So no modification is warranted under the

head of 'Loss of love and affection' or 'Loss of Consortium'.

Thus the total amount entitled by the appellants in addition to the

amounts awarded by the Tribunal is fixed as Rs.1,40,000/- and the said

amount shall be deposited by the 2nd respondent insurance company

along with interest and cost as ordered by the Tribunal within a period of

three months from the date of receipt of this judgment. Apportionment

of the additional amount shall be done in proportion as ordered by the

Tribunal.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE SCS