Arun Nath @ Arulnath vs The Manager, Tata Aig General ...
2021 Latest Caselaw 22785 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. 3379 OF 2019
   AGAINST THE AWARD DATED 26.03.2018 IN OPMV 164/2015 OF MOTOR
                     ACCIDENT CLAIMS TRIBUNAL ,KOLLAM,
APPELLANTS/PETITIONERS:

    1        ARUN NATH @ ARULNATH
             AGED 53 YEARS
             S/O.PARAMSIVAN PILLAI, MARUTHIMOOTTIL VEEDU,
             KULATHUPUZHA P.O., KULATHUPUZHA, KOLLAM-691301.

    2        SUBHALAKSHMI,
             AGED 49 YEARS
             W/O.ARUN NATH @ ARULNATH, MARUTHIMOOTTIL VEEDU,
             KULATHUPUZHA P.O., KULATHUPUZHA, KOLLAM-691301.

    3        SARATH,
             AGED 21 YEARS
             S/O.ARUN NATH @ ARULNATH, MARUTHIMOOTTIL VEEDU,
             KULATHUPUZHA P.O., KULATHUPUZHA, KOLLAM-691301.

             BY ADVS.
             PRATHEESH.P
             SMT.ANJANA KANNATH


RESPONDENT/2ND RESPONDENT:

             THE MANAGER, TATA AIG GENERAL INSURANCE CO. LTD.
             PENINSULA BUSINESS PARK, TOWER A, 15TH FLOOR,
             GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI,
             MAHARASHTRA-400013.

             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. 3379 OF 2019
                                     2


                               JUDGMENT

The appellants are the petitioners in O.P.(MV) No.164/15 on the

files of the Motor Accidents Claims Tribunal, Kollam. The aforesaid

claim petition was filed by the appellants seeking compensation for the

death of one Sivanand due to the injuries sustained to him in a motor

accident occurred on 07.02.2015.

2. The 1st and 2nd appellants are the parents and the 3 rd appellant

is the brother of the deceased. The accident occurred when the motor

cycle ridden by the deceased was hit by a car driven and owned by the 1 st

respondent. It was contended that the deceased aged 19 years, was

working as cashier cum waiter and also was a B.com student at the

relevant time. The monthly income claimed was Rs.9,000/-. As

compensation an amount Rs.15 Lakhs was claimed by the appellants.

3. The 1st respondent did not appear and accordingly he was set

ex-parte. 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.

4. The evidence in this case consists of oral evidence of PWs 1

to 3 and Exts.A1 to A11.

MACA NO. 3379 OF 2019

5. After the trial, the Tribunal found that the accident occurred

due to the negligent driving of the vehicle by the 1 st respondent and being

insurer of the vehicle, the 2nd respondent was found liable to pay the

amount of compensation. The quantum of compensation was fixed as

Rs.9,84,375/- and the 2nd respondent was directed to deposit the said

amount along with the interest at the rate of 7% per annum from the date

of petition till realisation. Being dissatisfied with the quantum of

compensation this appeal is filed.

6. Heard Smt.Sreekutty T.S., learned counsel for the appellants

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

company.

7. The learned counsel for the appellant points out that the

amount awarded by the Tribunal is grossly inadequate, particularly under

the head of compensation for 'Loss of dependency'. On the other hand,

the learned counsel for the 2nd respondent would point out that reasonable

amounts are awarded by the Tribunal in all the heads and no interference

is warranted.

8. The crucial question to be determined is whether the

quantum of award requires any interference. It is seen from the records MACA NO. 3379 OF 2019

that even though a monthly income of Rs.9,000/- was claimed by the

appellants, what was fixed by the Tribunal is only Rs.6,000/-. The claim

was in respect of the accident occurred in the year 2015. The deceased

was aged 19 years and he was claimed to be a person working as cashier

cum waiter, besides being a student of B.Com . Even though no

evidence was adduced to substantiate the same, an amount of Rs.6,000/-

in respect of an accident occurred in the year 2015 is very low. Whatever

be the nature of avocation of the deceased, for fixing the monthly income

of person who was a victim of an accident occurred in the year 2015,

higher rates should be applied. Going by the principles set out 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 circumstances, the amount of Rs.9,000/- claimed by

the appellant can be treated as unreasonable in view of the fact that the

accident occurred in the year 2015. Accordingly, I fix the monthly

income as Rs.9,000/- for the purpose of computing compensation. The

other criteria adopted by the Tribunal for determining the compensation

under the head of 'Loss of dependency' are in tune with principles laid MACA NO. 3379 OF 2019

down in National Insurance Company Ltd. v. Pranay Sethi and

Others [2017 (5) KHC 350] and therefore, the same can be accepted.

Thus while reworking compensation under the head 'Loss of dependency'

with the above revised monthly income, it to comes to Rs.13,60,800/-

[(9000x40%)x12x18x½]. The Tribunal has already awarded an amount

of Rs.9,07,200/- and hence the balance amount entitled by the appellant

comes to Rs.4,53,600/-.

9. It is seen that, no amount is awarded under the head of 'Loss

of consortium'. As per the principles laid down in United India

Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [2020

(3) KHC 760], parents of the deceased shall be entitled for filial

compensation for the death of their child and the amount payable is

Rs.40,000/- each. While applying the said principle in this case, the

appellants 1 and 2 are entitled for compensation for 'Loss of filial

consortium' at the rate of Rs.40,000/- each. Accordingly, it is granted.

10. It is also noted that no amount is seen awarded under the

head of 'Pain and sufferings'. In the facts and circumstances of the case

an amount of Rs.10,000/- would be reasonable under this head and it is

awarded.

MACA NO. 3379 OF 2019

Thus the total compensation found entitled by the appellant in

addition to the amount already awarded by the Tribunal is determined as

Rs.5,43,600/- ( Rupees five lakhs forty three thousand and six hundred

only) and the 2nd respondent insurance company shall deposit the said

amount along with the interest and proportionate costs as ordered by the

Tribunal within a period of three months from the date of receipt of a

copy of this judgment. It is seen that the appeal was filed along with a

petition to condone the delay of 386 days in filing the same. As the said

delay was condoned on the condition that insurance company shall not be

liable to pay interest for the said period, the insurance company can

exclude 386 days, which is the period of delay in filing the appeal, while

computing the interest for the additional amount.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE scs